60 N.Y.S. 1087 | N.Y. App. Div. | 1899
This is an action to recover damages sustained by the plaintiff through the alleged negligence of the defendant. There may be a •difference of opinion as to the correctness of the learned .trial jus"tice’s disposition of certain requests to charge — relating to the merits — which were submitted to him by the counsel for the defendant. We need not, however, consider these requests, as we are all agreed that the charge was erroneous upon the subject of damages. 'The learned trial- justice charged -the jury upon the latter head as ¡follows, • “ and further you may award an amount which should reasonably compensate the plaintiff for the pain and suffering such as' you are prepared to say he will" endure in the future within' reason.able probability.” This was duly excepted to. The injury was to "to the plaintiff’s hand. There was no evidence tending to show that future pain was reasonably certain. The plaintiff called' no expert "upon this subject; there was no objective injury from the bare ■exhibition of which the inference of lasting or, indeed, of any stif•fering could.be drawn. The jury were, therefore, left t-o speculate upon the subject. The plaintiff testified that occasionally, when he uses his hand, he still has pain. From this it is argued that that •condition was not likely to cease finally upon the day of the "trial. This, however, does not meet the real difficulty. 'Occasional pain ¡might, it is true, and probably would, exhibit itself -later. But when and for how long a period? A week, a month, a'year? In the
For this error we are constrained to set aside the verdict and ■order a new trial, with costs to the appellant to abide the event.
Yan Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., ■concurred.
Judgment reversed, new trial ordered, costs to appellant to abide «event.
