38 S.E. 289 | N.C. | 1901
This case is now being considered on a petition to rehear, granted on the application of the defendant, appellant. The original hearing was at the September Term, 1900, and the case is reported in
We are of the opinion that in cases where damages are sought to be recovered for mental anguish — sufferings of the (114) mind — there must be evidence of such sufferings introduced on the trial. The authorities in the several States are in conflict on this subject, but we will adhere to the rules laid down in Smith v. R. R.,
Neither in this case was there evidence of loss of mental powers, and his Honor was in error in submitting that question *85 to the jury in the absence of evidence. The plaintiff did, it is true, testify that he had fainting or unconscious spell at the time of the accident, but there was no evidence of permanent impairment of the plaintiff's mental capacity.
As to the evidence in respect to the earning capacity of the plaintiff in reference to his furnishing the hands under his charge with rations, and the instructions of his Honor on that evidence, we think the new trial ought also to be extended.
There was error in the trial below in the respects pointed out in this opinion, i. e., as to the measure of damages, and there must be a new trial on the matters embraced in the third issue — "What damages, if any, is the plaintiff entitled to recover?"
Petition allowed. Partial new trial.
Cited: Bryan v. R. R.,
(115)
