The evidence, regardless of the question by which it came in, or of whether it cropped out, was competent on the question of damages, viz., that the plaintiff’s. capacity to conceive would continue, but she would continually suffer the discomfort and pain of miscarriages. A motion to strike it out would have been properly denied. To say, therefore, that “ The allowance of the question was error ” is only to deal with a technicality for its own sake. It is true that the evidence could not be used as a basis for damages for pecuniary *143loss resulting from deprivation of future offspring (Butler v. Manhattan Railway Co., 143 N. Y. 417), but it could be used as a basis for damages for pain and suffering, and was therefore material and relevant. If the defendant’s counsel feared that the jury . might also make use of it to speculate as to how much pecuniary loss the plaintiff would suffer by having no more children to grow up and support and enrich her (after the manner in actions by next of kin for deaths by negligence), it was for him to request the trial Judge to charge the jury that such damages were not allowable. As it is, the evidence was properly in the case, and there is nothing to indicate that it was used as a basis for such unlawful damage. It will not do to distort the charge of the trial Judge on that head (to which there was no exception), viz., that the plaintiff was “entitled to recover reasonable compensation for her pain and suffering, for the deprivation of her natural powers, for the loss of health which is due to this accident, if it is due to it ”. To say she was entitled to damage “ for the deprivation of her natural powers ”, was strictly correct, even if limited to a particular delicate meaning, which was not the case. That is true in the case of man or woman. But that is far from even intimating that damages may be given for pecuniary loss resulting from deprivation of future children. So where in the case is there any intimation of a notion, much less of a claim, that such damages were allowable. ISTor was there any claim on the argument, nor is there any in the brief for the appellant, that such damages were allowed. The only point made on the admission of the evidence in question is that it was “incompetent, immaterial, irrelevant,” for the reason that it was not shown to be due to the accident, and “as not pleaded ”. That it was used as a basis for unlawful damages is not claimed. The learned counsel for the defendant could not bring himself to go that far. Finally, it may be worth while to point out that the question itself was proper, viz., “What effect does it” (the injury) “have on her capacity to bear children ” ? It was just as proper to ask what effect an injury has on the function, use or capacity of the arm, leg or stomach. The capacity may be made laborious, .or painful, or destroyed. The degree of injury is competent to be shown. If the plaintiff were still able to conceive and bear children with regularity and certainty that would be evidence that her womb was not much injured or *144weakened, and that she could not do so would be evidence — strong corroborative evidence •—• that the physical condition testified to actually existed, viz., that the womb was retroverted and its ligaments greatly weakened.
The judgment should be affirmed.
Woodward and Rich, JJ., concurred; Jenks, J., read for reversal, with whom Miller, J., concurred.