This is an action to recover damages for personal injury from the breaking of a plank in a sidewalk, resulting in the leg of the appellee going through the hole, and the knee-cap striking the edge of the plank in front. .The leg was bruised, the appellee lost three or four weeks’ time, has suffered a good deal of pain, and was not cured at the time of the trial.
The only evidence as to the probable future condition of the appellee was from the physician, who said that the present swelling was the result of inflammation, and that he thought that the appellee could be cured, bnt how and in what time is somewhat vaguely stated in his testimony.
The court instructed the jury that if they found from the evidence that the injury was permanent and incurable, they should take that into consideration in assessing the damages. The jury found for the appellee, $4,000.
In looking at all the evidence it is clear that, as compensation for past expense, loss of time and suffering, the verdict is excessive. It could only be justified as a compensation for future disability to some considerable extent. “ There is no doubt that bodily pain and suffering is a proper item of damages in such cases. Bor is the evidence necessarily limited to suffering which is past, where the proof renders it reasonably certain that future pain and suffering is inevitable. Damages are to be proved, and none can be allowed except such as are shown by the proof to be, at least to a reasonable degree, certain.” Curtis v. R. & S. R. R., 18 N. Y. 535. The instruction was excepted to, and one ground of the motion for a new trial was the excessiveness of the verdict, the denial of which motion was also excepted to.
The burden was upon the appellee to show not only such circumstances as made the city answerable for the injury he had sustained, but also the character and extent of the injury, so that the jury should have other grounds for such a verdict than that the plaintiff was an individual to whom the sum would be very convenient, and the defendant a large city to whose gross outlay it would be an almost inappreciable addition; and that it might be conjectured, though not proved, that his injury was serious and permanent.
The views above expressed render it needless to examine questions of variance and criticism upon instructions, the grounds for which can be removed or avoided upon another trial.
For the error in giving an instruction without evidence to base it upon, and for that of not granting a new trial on account of the excessive damages, the judgment is reversed and the cause remanded.
Reversed and remanded.