The court charged the jury that in assessing the damages to the plaintiff they had the right to consider the lasting or permanent character of the injuries, to which the de*32fendant excepted and asked the court to charge that there being no proof that the plaintiff has suffered any lasting results of the accident, or that she is now suffering from the accident, or that she is likely to suffer any permanent injury resulting therefrom, the jury cannot award her any'compensation for lasting or permanent injuries. This was refused and defendant excepted.
Taking the evidence of plaintiff and all the possible inferences from it, it appears that she yras bruised by the fall, suffered pain; that she was a strong, healthy woman, fifty years of age* at the time, and that nearly three years after, when testifying on the trial, she was still suffering from it, was reduced in weight and physically feeble; but -there was no testimony of any medical expert that her injuries were incurable, nor even that they were reasonably certain to be permanent, or to continue for .any time longer. Ho bones were broken, and she testified that no physician ever told her which of her internal organs was injured, and she did not ask about it; that she was ill in general, feels hurt in the direction of her heart, chest and stomach, and the upper part of-her body hurts.- It would seem from this state of the proof that there was nothing from which the jury could reasonably determine that the plaintiff’s injury was lasting.
In Filer v. N. Y. C. R. R. Co., 49 N. Y. 42-6, the court observed: “ There is no evidence other than that of experts by which - courts and juries can determine whether a disease or an injury has been or can be permanently cured, or what its effect will be upon-the health and capability of the injured person in the future.” In Mosher v. Russell, 44 Hun, 12, the Supreme .Court said: “Two medical experts were examined on the trial by the -plaintiff, but neither of them expressed any opinion as to' the probable future effect of the alleged injury upon the plaintiff, and there appears to-be no evidence in the case from which the jury would have a. right-to speculate' or infer that the injury was permanent or one from' which the plaintiff was likely to suffer in the future.”
As was said in Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y. 61, 64: “ Medicine is very far from being an exact science. At the best, its diagnosis is little more than , a guess enlightened by experience. The chances of recovery in a given case are more or less affected by unknown causes and unexpected contingencies; the wisest physician can do no more than form an opinion based upon a reasonable probability.” If a defendant’s liability in damages-may be allowed to rest upon opinion, it should not be the opinion of . *33a jury without the help of science. If a guess is to have such serious consequences, it should be the guess of a medical man of learning and experience.”
These observations do not apply, of course, to 'the loss of a member, nor, perhaps, in the case of a fracture (Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429; but see Crawford v. D., L. & W. R. R. Co., 55 N. Y. Super. Ct. 255; Schmidt v. B’way & Seventh Ave. R. R. Co., March, 1892, Trial T., Com. Pleas); but “ damages are to be proved and none can be allowed, except such as are shown by the proof to be, at least, to a reasonable degree, certain. * * * Future damages could only be awarded when it is rendered reasonably certain, from the evidence, that such damages will inevitably and necessarily result from the original injury.” Curtis v. R. & S. R. Co., 18 N. Y. 534.
In this case the jury had nothing before them except the condition of the plaintiff at the time of the trial and before; she could! not, of course, be permitted to say that that condition would continue; no medical man was called to testify that it would continue, and, therefore, the jury had no legal basis for concluding that it would. For the error in the charge and refusal to charge the judgment should be reversed and a new trial ordered.
Judgment affirmed, with costs.