Under an oral complaint for “ Damages to person ” the plaintiff testified that he was unable to work for three weeks; that his wages were $21 a week, and upon the defendant’s objection that it was speculative and remote the learned justice remarked: “ I will l'et -it stand and if not connected you may move to strike it out,” to which the defendant excepted. Upon cross-examination the plaintiff said the sum mentioned was his average earnings or income and it transpired that it *89was the return of the work of himself and three others, and furthermore that the three others worked along during the three weeks the plaintiff was laid up. When the plaintiff rested the defendant rested also, and moved to strike out the testimony as to the earnings as speculative and remote and further to dismiss because the damages had been inadequately and insufficiently proven. Both were denied with exceptions.
Now, without perpending the relevancy of lost profits to “ damages to person,” it is manifest that the earnings from his own labor which the plaintiff failed to get while he did not work should not be increased by the earnings he did get from the work of his hired helpers, and, as the learned justice declined to rectify this anomaly, he may not be thought to have disregarded its consequences.
The judgment should be reversed out of regard to a defect which does not affect the merits. Mun. Ct. Act, § 326.
Judgment affirmed, with costs.