Finkelstein v. Michigan Railway Co.
Finkelstein v. Michigan Railway Co.
Opinion of the Court
(after stating the facts). In this case the negligence of the defendant is admitted. No question is raised as to contributory negligence on the part of the plaintiff. That the plaintiff was in the accident and suffered injuries is also unquestioned. There
“The errors relied upon by the defendant for a reversal of the judgment, in the admission of evidence, and the charge of the court, for the most part arise out of the admission of evidence as to the injuries to the eyes and foot of plaintiff and his right to damages for past and future loss growing out of such injuries.”
The plaintiff testified that his right eye was good before the accident, but that his vision in this eye was impaired after the accident. Dr. Robinson, a medical witness for the plaintiff, testified that from the condition that he found the eyes in it might happen that plaintiff would lose them both. With reference to these claims, the trial judge in part charged the jury as follows:
“You are further instructed .that, in order to entitle the plaintiff to recover for any apprehended future injuries to the left eye, there must be a degree of probability amounting to a reasonable degree of certainty, that such injury will result, and that it was caused by the accident in May.
“It is admitted by the plaintiff that his left eye was defective before this accident, and he says that there was a growth over that eye that affected the sight. Unless the jury find by a preponderance of the evidence that any subsequent trouble with this eye was caused by the accident in May, plaintiff cannot recover any damages for any change in the condition of this eye; that is, if the eye is more defective now than it was before the accident. But if the trouble with the eye is the result of prior injury or prior disease of the eye, then the jury could not award any damages to plaintiff for any impairment of the sight, or injury to this eye, unless they find to a reasonable certainty that this present condition of the eye was caused from the accident, and the jury would have no right to speculate on this question. They must find it, if they find for the plaintiff, from the evidence in the case, testified to by the witnesses.
*160 “The jury are instructed that they would have no right to award any damages to Mr. Finkelstein on the theory that he may hereafter lose his right eye, there being no such claim for damages made in the plaintiff’s declaration.” ‘
We are of the opinion that this charge was as favorable to the defendant as it was entitled to in view of the plaintiff’s claims. The trial judge removed from the consideration of the jury the right of plaintiff to recover for the possible loss of the right eye.
It is strongly urged that the testimony of Dr. Robinson as to the injuries to the eyes was not specific and definite enough to bring it within the rule announced in the case of Brininstool v. Railways Co., 157 Mich. 180 (121 N. W. 731), in that the testimony did not show “* * * such a degree of probability of such (future) consequences as to amount to reasonable certainty that they will result from the original injury.” A part of the testimony which 'it is claimed is purely conjectural and a guess was brought out on cross-examination. A reading of the charge shows that the trial judge had the rule of the Brininstool and kindred cases in mind, as he stated:
“The jury cannot allow for any future damages except such as are reasonably certain to occur as a result of the injuries complained of. No damage can be included for consequences merely because they possibly may occur, nor based on speculation and conjecture; but all future damages must be based on reasonable certainty.”
In other parts of the charge the same instruction is given in different language. We are of the opinion there was enough evidence of injury to the left eye to warrant the submission of this injury to the jury under the instructions above set forth, which we deem proper.
We have examined defendant’s other assignments of error, but find them without merit. A reading of this
Reference
- Full Case Name
- FINKELSTEIN v. MICHIGAN RAILWAY CO.
- Status
- Published