The following opinion on rehearing was filed April 19, 1905. Judgment of district court reversed:
Letton, C.This is a rehearing of this case formerly reported ante, pp. 16, 22. The facts are, perhaps, sufficiently related in the former opinion, but it may be well to state that, according to the, plaintiff’s testimony, the miscarriage did not result from fright alone, since it appears that, when the gun was pointed at her, she was apparently shocked for a moment by fright, and that she then turned and ran for some distance, nntil a corn crib intervened between her and the defendant. There was sufficient medical testimony to warrant the jury in finding that the plaintiff’s *24injuries were a direct result of the ¿right and violent physical exertion occurring at the same time.
After a careful examination of the record we are of the opinion that there was not sufficient evidence as to the existence of permanent injuries or lasting impairment of the plaintiff’s health to justify the court in instructing the jury upon that point, or to warrant the jury in considering the same as an element of damage. The evidence upon this point is substantially set forth in the former opinion, and, tested by every criterion, is clearly insufficient.
It is insisted, however, by the plaintiff that the damages are not more than sufficient to fairly compensate the plaintiff for the injuries actually sustained and reasonably certain to be suffered by the plaintiff in the future, and therefore it Avas error Avithout prejudice to submit the question of permanent injuries. The evidence shoAVS that a physician was first called to the plaintiff on the 2d day of May, and that his last visit Avas upon the 8th day of May, Avhen the plaintiff Avas still in bed, but recovering. That in all he made five visits. That from the time she was able to be about, until the time of the trial, the plaintiff was able to do her housework, and in addition to this that, during the fall of 1902 and the folloAving. winter, she husked corn during the corn husking season; that she helped in the farm Avork, and plowed, harrowed and hauled wheat, corn and hay, cut corn stalks and milked. It is no doubt true that the plaintiff suffered from the defendant’s act, but the record shows she had been accustomed to help her husband in his farm Avork before the occurrence complained of, and Avas able to do outdoor work afterwards. The evidence falls far short of indicating such a condition of health as warranted a verdict for the amount given by the jury.'
It is impossible to say how far the submission of the question of permanent injuries entered into the consideration of the jury in making up their verdict. The verdict is clearly excessive, unless based upon the theory that permanent injuries were sustained.
*25The judgment of the district court should be reversed and the cause remanded for a new trial.
Ames and Oldham, CC., concur. By the Court:For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
Eeversed.