Opinion
December, 1893.
Joseph Kling, for defendant (appellant).
Menken Brothers, for plaintiff (respondent).
The evidence authorizes the inferences involved in the verdict, namely, that plaintiff's injury was the effect of defendant's negligence, without fault on the part of the plaintiff. Those inferences were peculiarly for the judgment of the jury, and we should not be warranted in the conclusion that they are so slightly supported by the facts and so repugnant to reason as to justify the appellate court in setting the verdict aside.
But the appellant affirms error of the charge. The court directed the jury that "in awarding damages you will include loss of wages, if there is any evidence upon which you can base a conclusion that he has lost wages. Damages are to be proved just as any other fact in the case and you cannot speculate upon it." This instruction the appellant challenges because "there was no evidence to prove what wages the defendant received, or that he lost employment, or that the employment was of any value."
That plaintiff's injury involved severe pain, disfigurement of the person, and expenditure for medical attendance is an undisputed fact, and we are unable to determine that for such consequences of the injury $350 is an extravagant reparation.
The verdict, therefore, carries no implication of an allowance for loss of wages or employment ( Seitz v. R.R. Co., 16 Daly, 264, 267); and we are to intend that, as the loss or value of wages and employment was not shown by evidence, the jury, in compliance with the clear instruction of the court, awarded no damages for loss of wages and employment. The jury were told that without proof the damage could not be found; there was no proof; hence the inference that the damage was not found.
In Leeds v. Met. Gas Light Co., 90 N.Y. 26, the charge was absolute that the plaintiff "is entitled to recover compensation for time lost and disability to labor," without the qualifying caution, if there be evidence of such time and labor. Moreover, nothing intercepted the inference that the jury had awarded compensation for the unproved damage. The case is plainly distinguishable from the one before us.
Judgment affirmed, with costs.
DALY, Ch. J., and BISCHOFF, J., concur.
Judgment affirmed, with costs.