delivered the following dissenting opinion:
I am unable to concur in that part of the foregoing opinion upon which the reversal is based relating to a refusal of the court to give the following instruction:
“Before you are warranted in allowing the plaintiff any sum by way of compensation for any alleged permanent injuries, if you should come to the question of damages, you must be reasonably certain, from a preponderance of the evidence, that the plaintiff has sustained permanent injury and disability, and it is not enough that you may believe that a permanent injury is possible.”
In my opinion this requested instruction was fully covered by the charge given by the court, although not in the exact language, and precluded the jury from finding upon any issue on a mere possibility.
The court gave the following instruction, • among others (see page 176 et seq. of Transcript):
“Now, I have said to you that the burden of proof •is upon the plaintiff to satisfy you by a preponderance, or outweighing of the testimony, that the chauffeur, Albert J. Maxson, was negligent, and that that negligence was the proximate cause of the injury which came to her, and that damages resulted therefrom, and the amount of damages, all of these matters, she must establish to your satisfaction by a preponderance or outweighing of the testimony. * * With the exception of contributory negligence which Mr. Ottenheimer has alleged in his answer, all other matters in this case, the burden of proof is upon Miss Rugenstein. Now, you may ask yourselves, ‘What is meant by the term “preponderance of proof,” and in legal contemplation, whenever a person makes a statement, he has got to prove it, and how does he°prove it?’ Well, he has to prove it by testimony—by a preponderance or outweighing of the testimony—he has to prove it by testimony which weighs the more according to the *612scale of probability, that what he says is more satisfactory to yon, more probable, than the other side. We don’t argue for demonstration—that is not possible in the affairs of human mundane, but we do argue that there shall be a preponderance, and we sometimes use a symbol; * # yon may liken the weighing of testimony to an apothecary’s scale, one side representing the plaintiff, and the other side representing the defendant. * # ”
I think the instruction given fully covered the instruction requested, and that the charge could not have been misunderstood by the jury. For that reason, I think the judgment should not be reversed.