(dissenting.) The court instructed the jury in this case that, if they found for the plaintiff, they should assess his damages “at a sum that will in ‘their’ judgment be a just and fair compensation for the mental and physical pain and suffering at .the time of the injury and afterwards, including any mental .anguish and mortification 'or any physical inconvenience he may suffer in the future by reason of the wounds received, as well as any debts he may have incurred or paid out by attempting a cur.e1 as well as any losses he may have sustained by reason of a loss of his earning capacity on account of said wound.” So much of the instruction as is in these words, “as well as any debts, he may have -incurred or paid -out by attempting a cure, as well as any losses he may have'sustained by reason of a loss of his earning capacity on account of said wound,” should not have been given. There .was no evidence upon which to’ base it. The only testimony'on this point, was that of the plaintiff. He testified that he was “examined by a physician and had been to some expense, but does not know how much he expended while under the care of a doctor; that he was under the care of a doctor at Gurdon, who dressed and sewed up his face, and that after he got to El Dorado he was at some expense there;” that his injury “affected his capacity to labor and perform his ordinary vocation a right smart; that he had not been able to work much since he was injured, not dike he did before.” There was no evidence of the amount of expenses he incurred on account of his injury, or of what he was able to earn before and since — of the extent it affected his earning capacity.
Of a similar instruction this court -said in Railroad Co. v. Barry, 58 Ark. 205: “The fourth instruction, as to the measure of damages, given for the appellee, is erroneous in- -this, that it told the jury they might consider as an element of the plaintiff’s damages the past and prospective expenses of his sickness resulting from his injury, and allow such damages as in their judgment would be a fair and just compensation for the same, not exceeding the amount sued for. The only evidence in regard to the expenses of plaintiff’s sickness, caused by the injury is his own, which is as follows: T have paid the doctor all the money I had, after selling .everything I had, and still owe him.’ How much this was is not shown. How then could the jury estimate it? They could not find the amount from the testimony, and there was therefore no evidence upon which to base this part of -the instruction. If was calculated to mislead the jury, and make them think the damages were entirely at their discretion. How far it affected their finding we can not tell.” And this court, on account of this error, reversed the judgment in that case. This court has often held that it is error to give an instruction to a jury where there is no evidence upon which to base it. Johnson v. State, 36 Ark. 242; Little Rock & F. S. Ry. Co v. Trotter, 37 Ark. 593; Same v. Townsend, 41 Ark. 382; Burke v. Snell, 42 Ark. 57; Dickerson v. Johnson, 24 Ark. 251; Morton v. Scull, 23 Ark. 289; Owens v. Chandler, 16 Ark. 651.
Under the Constitution and laws of this State, the appellant was entitled to a trial of its cause before a jury upon proper instructions in writing. It is, however, not entitled to a new trial on account of harmless errors, but is if the error is prejudicial. The law guards a litigant’s rights in this behalf with great care. Courts can not follow the jury to their room, and ascertain to' what extent they were governed by the error. Hence the law gives the litigant the right to a reversal and new trial, on account of the error, unless it affirmatively appears that it was not prejudicial. Bizzell v. Booker, 16 Ark. 329; Magness v. State, 67 Ark. 604; St. Louis & San Francisco R. Co. v. Crabtree, 69 Ark. 134; Arnold v. State, 71 Ark. 367; Morris v. Nat. Bank, 104 U. S. 625, 630; Smith v. Shoemaker, 17 Wall. 630; Vicksburg & M. Railroad Co. v. O’Brien, 119 U. S. 99; Gilmer v. Higley, 110 U. S. 50; Derry v. Cray, 5 Wall. 807.
The court in this case seems to think that the verdict was reasonable and fair, and therefore should be affirmed. That is not the test. According to the test given, the verdict of the jury and judgment of the court should be reversed. They were instructed to assess the appellee’s damages at a sum that will in their judgment be a just and fair compensation for, among other things, “the debts he may have incurred or paid out by attempting a cure, as well as any losses he may have sustained by reason of a loss of his earning capacity.” There was no evidence upon that point. What were they'- to conclude? Necessarily that they could assess damages on account of such debts and loss of earning capacity without evidence. The damages suffered on account of loss of earning capacity may have extended through a lifetime. Who can tell how much the jury allowed for them? They were a great part of the damages suffered by him, and it is not reasonable to suppose that they, under the instructions of the court, did not enter largely into the verdict. How much we can not tell.
I'think the judgment should be reversed, and the cause remanded for a new trial.
Wood,.J., concurs.