(after stating the facts.) There was no charge of negligence in the complaint, but the appellant did not demur,- and answered denying negligence and setting up contributory negligence on the part of the appellee, J. H. Bird, and Wharton Bird in driving upon the railroad track in front of the approaching train without exercising reasonable care to ascertain whether or not an engine was running there and approaching said crossing before they attempted to drive thereon.
Testimony was introduced without objection tending to show that appellant’s servants were negligent in failing to ring the bell or blow the whistle as they approached the crossing, and also tending to show that the train was running at a speed of twelve or fifteen miles an hour at the crossing. Wé will, therefore, after judgment, .treat the complaint as amended to conform to the proof, and hold that it was sufficient and the evidence was also sufficient to sustain a charge of negligence in the particulars recited.
Appellant urges as one of its principal grounds for a reversal that there was no evidence to warrant the jury in finding that there was a' permanent injury, and that the court should have given appellant’s prayer for instruction No. 2, which is as follows: “You are instructed that the evidence of this case does not warrant you in returning a verdict for the plaintiff based upon any permanent injury to Wharton Bird.”
On the question of whether or not the injury was permanent Dr. J. W. Meek, as physician and expert, testified as follows: “From my examination of the child, and assuming as true the facts testified to, as to the injury and his condition before and after, then I would say on the question of probable result that it is a question of opinion; no man can say; assuming all these things to be true, the probabilities are he will never get better. He may develop epilepsy; the probabilities are against his complete recovery. * * '* Concussion of the brain and spine immediately following an injury in some cases rapidly pass away; in others they do not. In an adult as a rule they pass away except in a woman; women are more apt to suffer from a nervous shock than a man; as a rule a child will get well from a neurasthenic condition quicker than a grown person. Neurasthenia means nerve weakness. People often entirely recover from it. The demarcation between the condition of this boy and that class of patients that do recover from neurasthenia is uncertain; you may take two children and submit them to the same conditions and one may get well and one get worse. I don’t believe I know of a child not to recover from receiving a shock where there is concussion of the brain or spine. I have seen very few children suffer from that condition. I never had one in my care like this at its age, and can not say whether or not I have seen them recover. It is hard to recover from traumatic neurasthenia. The chances are better for a child to be relieved from it than a grown person on account of the mental equation. Where a person is old enough to think about themselves it is against recovery. We do not have that in little boys; they are not introspective like grown persons. If he ever gets it off his mind he will probably get well.”
Then after describing other .physical conditions and symptoms of the child, Doctor Meek continued his testimony as follows: “I do not find any physical injury about him. You have to take the whole assembly of symptoms together with a history of the case to find out whether you have a case of traumatic neurasthenia. I can not say that he had a single symptom pointing to a permanent injury. By taking them all together I think the probability is of having a permanent injury; that is as far as any man can go. It is just about equally balanced in my mind, I think. It is a question of opinion at last. You can not prophesy with any degree of accuracy; it is just as probable that he will get over it as it is that he will not; it is something that you can not prophesy or measure.”
Dr. J. B. Wharton testified on behalf of appellee as follows: “These spells and his nervous condition is attributable to the injury that he received. That injury was calculated to produce such results. As to the probable duration of that condition, that is hard to tell. He may in time get well and he may not. It is questionable whether he wall ever get entirely well, in my mind. It depends on the amount .of involvement in his nervous system and nerve centers of the brain. I would say that it is possible that the boy can get well under the proper surroundings. Looking at it as a matter of probabilities, I would say it has been discouraging to me; so much so that I hardly know what to, think about it. I have been in doubt about it for the last seven months. It might develop into a paralytic condition, to temporary loss of vitality, to such an extent that he-would lose his health to such a degree that he would never get well. He will have to get well in the next few years or he never will get well. Neurasthenia coming from a shock could continue beyond the period of eleven months and then recover. He ought to have improved in that length of time greater than he has. Where there is no improvement within eleven months I hardly know what my judgment would be as to the probable duration of the injury. The question is hard to settle in my mind what the duration would be. These cases are such that it is hard to tell what they are going to do. * # * I do not contend that this child has at this time a concussion of the spine; he simply has the after effect. The injuries received in middle age and old life are much more liable to remain than with a child, because a child don’t dwell on it and gives nature a chance to get well. Taking this child’s case, I could not say that the probabilities of its recovery are greater than that it will not recover in a reasonable time. It is a doubtful case. I would not be sure that it is permanent or not. ’ ’
There was testimony by physicians as experts on behalf of the appellant to the effect that the injury was not permanent.
The court erred in not granting appellant’s prayer for instruction No. 2. The testimony, viewed in the strongest light in favor of appellee, does not make it reasonably certain that 'Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable certainty that the injury is permanent the court should not permit the jury to assess any damages for permanent injury. Ark. Lumber Co. v. St. Coner, 97 Ark. 358. See also Ark. & La. Ry. Co. v. Sain, 90 Ark. 278; 13 Cyc. 144, and cases cited.
Mr. Hutchinson says: “The jury may take into consideration future as well as past physical pain and suffering, but to justify them in doing so it must be made reasonably certain that such future pain and suffering are inevitable, and if they be only probable or uncertain they can not be taken into the estimate. ’ ’ 3 Hutchinson on Carriers, § -805, and cases cited; Chicago, R. I. & P. Ry. Co. v. Archer, 46 Neb. 907; Smith v. Milwaukee Builders & Traders Exch., 30 L. R. A. 504.
The experts on behalf of appellee did not testify that in their opinion the injury to Wharton Bird was permanent. It was a matter of speculation with them as to whether it was permanent or not. This being true, it must also have been only a matter of conjecture with the jury. But to fulfill the requirements of the law there must be affirmative testimony to the effect that the injury was permanent before tbe jury would be authorized to find that such was the fact, and the court should not allow the permanency of the injury to be considered as an element of damage where the witnesses themselves are uncertain as to whether there would be any permanent injury and where the nature of the injury fer se does not show that the injury was permanent.
Appellant complains of instructions' which allowed the appellee to recover if the negligence of the appellant “contributed to the injury.” The specific ground of criticism is because the instruction does not say that the negligence of appellant must be the proximate cause of the injury.
If the injury resulted from appellant’s negligence, then there is no question in the evidence but what such negligence was the proximate cause of the injury. Therefore, there is no prejudicial error because the instruction did not contain the qualification that appellant insists on.
The undisputed evidence shows that the proximate cause of the injury was the collision of appellant’s train with the appellee’s wagon, and if this collision was caused by appellant’s negligence then such negligence was the proximate cause of the injury. It is a question for the jury under the evidence as to whether appellant was negligent in causing the injury, and this- question, as well as the question of contributory negligence of the appellee, was submitted to the jury upon instructions free from error.
Various objections are urged to the rulings of the court in giving and refusing prayers for instructions which we deem it unnecessary to discuss here. Suffice it to say we have examined critically these objections and find that there was no error in the rulings of the court. We find no error in the rulings of the court in the admission of testimony.
It is urged, among other grounds for reversal, that the verdict was excessive as the result of passion and prejudice, but we do not find that anything occurred during the progress of the trial that was calculated to prejudice the minds- of the jury against appellant. We are, however, of the opinion that the verdict was excessive, caused doubtless by the error in allowing the jury to speculate upon the question as to whether or not Wharton Bird’s injury was permanent, and in allowing them to find that such injury was permanent.
As there is nothing to indicate that the verdict was rendered under the influence of passion and prejudice, the question as’ to whether or not the error in allowing the jury to consider permanent injury as an element of damage could have.no other effect than to increase the amount of the damages assessed by the jury. The question of the permanency of the injury had no relation whatever to the issue of negligence. We are of the opinion therefore that the error indicated may be cured by allowing a remittitur to be entered for a sum sufficiently large to make sure that the amount for which the judgment is allowed mil not be excessive and unreasonable.
In St. Louis, I. M. & S. Ry. Co. v. Adams, 74 Ark. 826, this court, through Mr. Justice Riddick, announced the doctrine in allowing a remittitur as follows: “What the court undertakes to do is simply to name an amount so low that there can be no reasonable ground to believe that a jury of average judgment, after considering the evidence, would, when properly instructed as to the law, allow plaintiff a less sum than that named, and which amount the court can clearly see is not excessive.”
The facts set forth in this record would warrant the jury in finding that Wharton Bird, by reason of his injury, has been subjected to intense and horrible suffering up to the time of the trial, and that he would suffer in the future. There was testimony from which the jury might have found that the recovery of Wharton Bird would have been by slow process and rvould have taken considerable time. The testimony of his mother and father and the physicians, describing his condition during the eleven months since his injury, would warrant the jury in finding that it would require a considerable length of time for his recovery. In the opinion of some of the physicians who testified as experts Wharton Bird could be cured by proper treatment, showing that it would require treatment in the future to cure him. Other experts testified, as we have shown, that it was uncertain as to whether he could be cured at all or not; but there was abundant evidence to show that for some time at least in the future the appellee would suffer greatly as the result of his affliction. While the uncontradicted testimony of the witnesses on behalf of appellee made it doubtful as to whether the injury to Wharton Bird was permanent and therefore rendered it improper to consider the injury as permanent, yet this testimony, as well as testimony on behalf of appellant, showed that there would be future suffering. It was therefore proper for the jury to consider future suffering as an element of damage, and under the evidence the question was correctly submitted in appellee’s prayer No. 6*. Since the uncontroverted testimony showed there would be future suffering, the instruction was correct. Prior to the injury he was a stout, healthy child, free from nervous symptoms; after the injury he had lost weight. The nature of his sufferings since the injury was graphically described by his mother and father. Their testimony shows that since the accident he had “spells or spasms.” They would come on “like having a spasm.” They would leave him in from five to forty-five minutes. He had them at intervals of from three days to three weeks apart. _ When the spells came on him he made a “peculiar noise and his limbs would jerk and draw like a child in a spasm, ’ ’ and after the spells he seemed to be numb, and never went to sleep in the daytime.
We are of the opinion that under all the facts and circumstances a verdict in the sum of $5,000 would be a reasonable sum and the jury would have been clearly justified in returning a verdict for that amount. The effect of the error we believe will be fully eliminated by a reduction of the judgment to that sum.
If the appellee will cause a remittitur to be entered in fifteen days for all in excess of $5,000 the judgment will be affirmed and judgment entered here for that sum; otherwise the judgment will be reversed and the cause remanded for a new trial.
If you find for the plaintiff, you will find for him in such sum to which you find from a preponderance of the evidence the plaintiff is entitled. And in determining this amount you will' compensate the plaintiff for all the pain and suffering endured by him which has resulted from said injury, or which shall thereafter result therefrom, if you find from a preponderance of the evidence that there will be pain and suffering therefrom in the future. You will also consider in arriving at the amount of your verdict, the effect of said injury on his nervous system, if you find the nervous system of said plaintiff has been impaired by reason of the said injury and the shock and fright incident and connected with the injury. You shall further consider the probable duration of the injury to the nervous system of the plaintiff, together with the probable effect in the future on the mental and physical condition of the plaintiff resulting from the impaired nervous system which may have been proven by a preponderance of the evidence, if any have been so proven.