I am unable to agree to an affirmance of this judgment. The complaint should have been dismissed. (McCloskey v. Met. St. Ry. Co., 67 App. Div. 617.) The evidence did not justify the jury in finding the defendant negligent, and if it did, then the same evidence necessarily required a finding to the effect that the plaintiff’s negligence contributed to his injury. The motorman could not anticipate that the plaintiff would, when the car was only a few feet from him, step in front of it. This is just what the plaintiff did, as a fair consideration of his own testimony will demonstrate, as well as that of the only witness produced by him in corroboration. His statements are not only contradictory, but quite unsatisfactory, but when taken in connection with the fact that he was thrown into the fender, the only fair inference is that he was in the middle of the track when he was struck by the car. Plaintiff’s witness in corroboration testified that he saw the car approaching half a block away and that he stopped to let it pass before attempting to cross the tracks. If he could see the car then no reason is assigned or given why the plaintiff could not.
The judgment ought also to be reversed for an error in the charge. The court stated to the jury that “ There is no proof that the plaintiff has suffered any loss of earnings in the past, but it is claimed that his injury will probably affect his earning capacity in the future and that the injury is of a permanent character. If you find that the injury is permanent you may award reasonably just compensation for. that injury, taking into consideration also whatever probable loss of earnings will be sustained by the plaintiff, but your conclusion must not be based upon speculation, and you must follow the evidence and the reasonable inferences to be drawn from the evidence.” The defendant excepted to this portion of the charge in so far as it permitted the jury to make an award for the “ loss of earnings of the plaintiff in the future.” The exception was well taken. The record will be scanned in vain to find any evidence whatever which justified the jury in making any award for the plaintiff’s future earning capacity. The accident happened on the 22d of March, 1899. The trial took place in December, 1901, and the fact is undisputed that in about six weeks after the accident the plaintiff resumed his accustomed work, since which time, so far as *256appears, he lias not lost a single day. The fact is also undisputed that he has, since the accident, done the same kind of work for which he has received the same pay as theretofore. This is the evidence upon the subject, except that Dr. Skearry testified that he could state, with a reasonable degree of certainty, that the result of the plaintiff’s injuries would be his death, but the fact that the plaintiff would sometime die as the result of the injuries he had received did not of itself justify the jury in reaching the conclusion and making an award therefor, that by reason of that fact there would a time come when his earning capacity would be diminished. (Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26.) To entitle the plaintiff to recover present damages for apprehended future injuries he was obligated to establish the same with a reasonable degree of certainty. (Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305; Laidlaw v. Sage, 158 id. 73.) Substantially the same charge here excepted to was condemned in McKenna v. Brooklyn Heights R. R. Co. (41 App. Div. 255).
For these reasons I think the judgment appealed from should be reversed and a new trial ordered.
Judgment and order affirmed, with costs.