Washington & Georgetown Railroad v. Dashiell, 7 App. D.C. 507

Washington & Georgetown Railroad v. Dashiell

7 App. D.C. 507 | D.C. Cir. | 1895

Mr. Chief Justice

Alvey delivered the opinion of the Court:

This action was brought by the appellee against the appellants to recover for personal injuries alleged to have been caused by the negligence of the appellants, while the appellee was a passenger on a street car of one of the appellants, the Washington and Georgetown Railroad Company. The accident occurred on the i6th,of April, 1893, in a collision between the street cars of the Washington and Georgetown Railroad Company and those of the Rock Creek Railway Company, at the intersection of Fourteenth and U streets, northwest — the train of the former company running on Fourteenth street, and that of the latter company on U street. Both companies are sued as negligent contributors to the accident.

*513It is unnecessary to go into a recital of the facts. We have examined the case with great care; and we find that the case was fully and carefully presented to the jury by the learned justice before whom the case was tried; and in the various rulings made by him in the instructions given to the jury, and made the subjects of exception and assignment of error, we find no reversible error, except in one respect, and that relates to the question of damages.

The court below was entirely right in refusing to take the case from the jury; and it was also right in refusing to grant the third and fourth prayers offered by the Washington and Georgetown Railroad Company. And we perceive no sufficient ground for the assignment of error in those parts of the general charge to the jury, numbered one, two, three and four, respectively, and to which exceptions were taken by the Washington and Georgetown Railroad Company. We think there were facts and circumstances in evidence sufficient to justify such instructions, and that they were not founded merely upon assumption, as contended by the defendants.

But in the instruction given at the instance of the plaintiff, and as explained in the general charge, as for what damages might be assessed, we think there was error. By the first prayer of the plaintiff, which was granted, the jury ' were instructed that if they found for the plaintiff, then, in estimating the damages, they had a right to take into consideration the evidence, if any, of the pain and suffering undergone by the plaintiff in consequence of her injuries. This was all right enough. But the court went farther, and instructed the jury, “ that in addition to damages for the pain and suffering undergone by the plaintiff, they should also assess damages for any impairment of the plaintiff’s nervous system, which they might believe from the evidence she had incurred as a direct result of the nervous shock received by her on the occasion of the collision, provided they believed from the evidence she had received such nervous shock. But, in estimating such damages, the jury were not *514to consider any prospective suffering arising from mere conjecture, but only such as they might believe from the evidence there was a reasonable probability that the plaintiff might suffer. And to entitle the plaintiff to recover damages for apprehended future consequences, there should be such a degree of probability of their occurring as amounted to a reasonable certainty that they would result from the injury. This reasonable certainty, however, did not mean absolute certainty, but only reasonable probability.”

Where a party has suffered physical injury, it seems to be well settled, that mental pain and suffering, attendant upon and as a natural incident of such bodily injury, may be considered as an element in estimating the damages-Wood’s Mayne on Damages, page 73, sec. 54, and the extended note of the American editor, where the American cases are collated and reviewed. But in this case the principle was carried much farther than that just stated, by the instruction of the court. The jury were instructed that,in addition to damages for pain and suffering, they could award damages for any impairment of the plaintiff’s nervous system, if such nervous impairment was produced as a direct result of the nervous shock received by her on the occasion of the collision. Thus making the nervous shock and the consequences thereof, a separate and independent ground for awarding damages. This is certainly a most in-” definite element to be considered by the jury, and one that is most difficult, if not quite impossible, to regulate by any reasonable standard for assessing damages. What is meant by impairment of the nervous system, or a nervous shock ? The nervous system, even to the most learned, has been found difficult to define with certainty and clearness, though we know that its functions are complex and manifold. We may affirm of the nervous system, that one of its principal functions is to produce sensation ; that its ministration in the animal structure and life consists in part in rendering the mind cognizant of that which is taking place around it, and in enabling it to act upon the material world, *515by the instruments with which the body is provided for the purpose. But this is but part of the very complicated functions that the system has to perform. How, then, are we to expect of an ordinary jury that they will be able to determine the nature and extent of the impairment of the nervous system, produced by what is termed a nervous shock ? We’ all frequently suffer nervous shocks from one cause or another; but it would be most difficut to ascertain and determine, with any degree of certainty, to what extent, if any, our nervous systems are impaired by such shocks. We know that, from repeated scares or frights, persons are liable to have their sensibilities easily, and in some cases morbidly excited, and that seems to be the case here. But the law furnishes no remedy for such sensitive condition. To attempt to furnish a legal remedy in such case, would open the door to the wildest speculation. Without for a moment intimating that simulation existed in this case, yet the nature of such claim would render it easy of simulation ; and if not simulated, the temptation would be strong to exaggeration, and the assigning of one cause for another in the production of the morbid state of the nervous sensibilities ; and all this, though it might be without real foundation, would be most difficult to disprove by the party sought to be charged. Such claims for compensation are subject to all the objections to remote and speculative damages.

We are aware that there are some few cases to be found, and some text writers following those cases, in which the principle of the instruction to the court below is apparently sanctioned. But the great weight of authority is against it, and we cannot give our sanction to it.

There is another question raised by exception and assignment of error, and that is, as to certain remarks or reflections indulged in by the counsel for the plaintiff, in his closing argument to the jury, supposed to be calculated to produce prejudice in the minds of the jurors adverse to the pefendants. This is a matter resting so entirely in the dis*516cretion of the court below, in conducting the proceedings before it, that it is only in very extraordinary instances, and where prejudice is the manifest object of the speaker, that it becomes matter of exception for review on appeal, when such remarks or comments are allowed by the trial court. That great prejudice and wrong is frequently effected by the improper and unwarrantable comments of'counsel, made without the support of the evidence, and beyond and outside of the legitimate scope of the subject of inquiry, is beyond question; and, in recent times, the courts of the country have frequently been called upon to counteract and relieve against such undue prejudice, and its effects, by silencing counsel and setting aside verdicts. Counsel have no privilege to comment upon matter beyond the limits of the evidence before the juiy for their consideration, with a view to creating prejudice and inducing a finding not justified by the evidence. It is upon the facts given in evidence to the jury, and those alone, that the verdict must depend for its support and validity, without reference to any ex.traneous matter that may be suggested by counsel. But in this casé, as the remarks objected to were withdrawn, there was no ground of exception, under any circumstances, left to the defendants.

For the reasons we have assigned, the judgment must be reversed, and a new trial awarded.

Judgment reversed, and a new trial awarded.