Dreher v. McKenzie. Paragraph 7, of Sec. 5190 R. S. (Sec. 11447 G. C.), relating especially to charges and instructions of the court to the jury, reads as follows: "The court, after the argument is concluded shall before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written and given, shall not be orally qualified, modified, or in any manner explained to the jury by the court; and all written charges and instructions shall by the jurors be taken in their retirement, and returned with their verdict in court, and shall remain on file with the papers of the case." See Toledo, F. & N. Ry. v. Gilbert, 24 O. C. C. 181 (2 N. S. 432) and Clark v. Boltz, 29 O. C. C. 665 (10 N. S. 1). And it has been held by this court and by the circuit court of the seventh circuit of Ohio, that where the requests were made for the purpose of invoking the statute referred to, it must affirmatively appear by the bill that the court was requested to give the propositions in charge in writing. It follows that the plaintiff was not entitled to have these propositions given in the words requested, even though they embodied correct propositions of law applicable to the case. There was no error in the refusal of the court to charge these propositions before argument, and we find no error in the record justifying a reversal, except the errors in the charge already pointed out, and for these errors the judgment is reversed and the cause remanded. Winch and Henry, JJ., concur. Cuyahoga County Circuit. NEGLIGENCE VERDICTS. [Cuyahoga (8th) Circuit Court, March 14, 1911.] Winch, Marvin and Henry, JJ. *LAKE SHORE ELECTRIC RY. V. GEORGE M. MILLS. 1. College Student Preparing to Become Mining Engineer Injured to Prevent His Following Such Profession. A young man studying at college to become a mining engineer was seriously injured in a trolley accident by the negligence of the company. He was permitted to show that his injury would prevent his following his chosen profession. Held: No error, even though his petition did not allege this special damage. 2. Evidence of other Injuries than Alleged not Prejudicial if Jury Held to Injuries Alleged. Though the petition does not claim damages for an arm, it is not error to permit a witness to testify that he found an injury to plaintiff's arm, if the jury is cautioned that there can be recovery only for the injuries specified in the petition. 3. Verdict of $9,000 for Back Curvature, Leg Fractures and Nervous Effects not Excessive. A verdict for $9,000 is not excessive for a young college man twenty-two years old, whose injuries consisted of permanent injuries to his back, fractures of his leg and his nervous system badly shattered. ERROR. M. B. & H. H. Johnson and G. M. Dahl, for plaintiff in error. Skiles, Green & Skiles and B. B. & A. G. Newcomb, for defendant in error. MARVIN, J. The relation of the parties here is the reverse of the relation in which they stood in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, refer to the parties as they stood in the original action. The plaintiff was a passenger in a car being operated by the defendant upon its road and was injured by the negligence of the defendant. This is conceded by the defendant. Suit was brought to recover damages for such injury, and the result was *Affirmed, no op., Lake Shore Elec. Ry. v. Mills, 84 Ohio St. 443. Lake Shore Elec. Ry. v. Mills. the plaintiff recovered a judgment of $9,000. It is claimed that these damages are excessive, and that the court erred in the admission of evidence on the question of such damages. The plaintiff, was, at the time of the injury, about 22 years of age and was a student at the Case School of Applied Science in the city of Cleveland. He was studying with a view to becoming a mining engineer. His father is an engineer and during school vacations he had worked some with his father in surveying, but he had not graduated in the profession, though he was within less than one year of graduation at the time he was injured. The injury resulted, as claimed by the plaintiff, in a curvature of the spine, and as is further claimed is such an injury to the back as would altogether prevent, or in any event greatly interfere with the prosecution by the plaintiff of the profession of a mining engineer. It is claimed that this evidence was all incompetent because the plaintiff was not a mining engineer. It is not like the case of one engaged in an employment where he hopes for promotion, but it is a case where the recovery sought was for damages which naturally would flow to one preparing for a particular occupation. The rights of the plaintiff would be governed by the same rule that would govern if he were an apprentice to a mechanical trade, so preparing himself to earn money in the prosecution of that trade. If this plaintiff had been a mining engineer at the time of the injury there is no doubt that he might show that fact and how he would be affected in the prosecution of that profession. Suppose instead of being an undergraduate in the college the plaintiff had just received his diploma, but had never entered upon the practice of his profession, and had never earned any money as an engineer, it would seem difficult to give any good reason why the effect of the jury upon his prosecuting the profession would not be competent. If instead of having received the injury immediately after he had received his diploma he had received it a week before he would have graduated, or, as in the case, about a year before he would have graduated, the reason for admitting evidence as to the effect of such injury upon the prosecution of the profession would seem to apply as well in the one case as in the other. This Cuyahoga County Circuit. young man, presumably at a considerable expense, was preparing for a profession in which he might expect to earn money, is so injured by the defendant that he is not likely to be able to prosecute that profession with such success as he otherwise would probably have been able to prosecute it, and we see no reason why, in estimating the damages, the effect upon his ability to do that which he was preparing himself to do, was not proper subject of inquiry. If instead of the profession which he had selected he had been studying for a long time for the profession of the ministry or of an actor upon the stage and the injury had resulted in total loss of his voice, we think the case would have been parallel to the present, and that such loss of his voice and its effect upon the proposed occupation of the party injured would be a proper subject of inquiry in estimating the damages to which he would be entitled. It is urged, however, that the petition in this case making no mention of the fact that the plaintiff was preparing for a particular profession or occupation, no recovery can be had because the injury tending to prevent his following such occupation, is not specially pleaded. In this we think the plaintiff in error is wrong. The plaintiff was not claiming special damages because he had been interfered with in doing a particular thing, but he claimed damages because of an injury which he received and which injury must necessarily result in affecting his ability to do work which he otherwise might have done. Under the allegations of this petition it was competent for the plaintiff to show what work he was doing and what work he would be able to do, or probably be able to do but for this injury, and how the injury would affect his ability to do that kind of work. Complaint is further made that the court permitted to stand an answer made by a witness that an examination of the plaintiff showed an injury to his arm, when there was no allegation in the petition that he received an injury to his arm, or that he claimed anything on account of such injury. The answer came to a question as to the condition in which the plaintiff was and the witness, in giving the answer, spoke of this injury to the arm, and this he necessarily spoke of if he gave a complete answer to the question, and it is of course true that the plaintiff was not Lake Shore Elec. Ry. v. Mills. entitled to recover by reason of the injury to the arm, not having pleaded it, nor was any recovery allowed therefor. The court in its charge read to the jury, the charges of negligence in the petition and the averments therein as to the injuries sustained and then said: "You will be confined in your consideration as to his loss to the personal injuries which he received and the other damages as recited and alleged in this petition." From this it seems clear that the jury were not permitted to consider any injuries other than such as are alleged in the petition, nor can anyone suppose from reading this record that what was said about the arm affected the verdict one iota. But, it is said, the amount allowed, $9,000, is excessive. We are not prepared to assent to this proposition. It was conceded at the trial that the plaintiff was in the best of health before the injury and that he was injured by the negligence of the defendant, and the testimony clearly shows that he received such an injury as must have caused him very great pain; that he has suffered greatly from it ever since; that his back is probably permanently injured; that his leg and ankle were crushed; that the bones in his leg and ankle were fractured; that there was great injury to his nose and that his nervous system was shattered to a great degree. Of course the measure of damages in such a case is not what one would expect in money to have such an injury inflicted upon him, but it must be compensation so far as money can reasonably compensate for the real injury received, including the physical and mental pain as well as the direct loss in earning capacity. An examination of this record fails to show any error which would justify a reversal of the judgment of the court below and the same is affirmed. Winch and Henry, JJ., concur. |