(dissenting).
In my opinion the case should be reversed and a new trial granted for two distinct errors, to wit: The giving of the fifth instruction for the plaintiff, and the sixth instruction for the plaintiff. These instructions have been set out ■ at large with others in the statement of facts in the majority opinion. I desire again to call attention to their language, showing hów erroneous they are and how materially they affect the verdict in this *842case. In addition to these two instructions there are numerous errors which are not such as would be reversible of themselves, and hence will not be considered in this dissenting opinion.
The fifth instruction for the plaintiff told the jury, in substance, that if the jury found for the plaintiff that he was injured and damaged by defendant’s negligence, then in assessing damages it may take into consideration plaintiff’s age and earning capacity prior to the injury, and ,may take into consideration his earning capacity if any, or the reduction of his earning capacity since this injury, if it believed same to be caused by the injury, and it may take into consideration any pain or suffering caused by the injury prior to this date and any pain or suffering or loss of earning capacity that may be sustained after this date, caused by the injury, and allow him for such damages as will compensate him . on account of said injury. The declaration alleged that the plaintiff had an earning capacity of one dollar and- a half per day, and the record shows that he was thirty-three or thirty-four years of age, but the record does not show exactly what he was earning at the time of his injury, or what was the current wages paid for such labor. The record shows that he was at work, and it is not to be presumed that he was working for nothing, but before he can be allowed compensation for loss of earning capacity the evidence must furnish the jury the facts upon which to base a judgment. It may be that the evidence showed that from the time of the injury to the time of the trial he had not been able to earn anything, but it does not show that at the time of the trial there was a total permanent disability resulting from the injury, and, if it showed this, there is no evidence of the expectancy of the life of Lott, so,' there is no basis in the evidence from which a jury could find a verdict for any sum without embarking upon, the merest conjecture. Of course, it devolved on the plaintiff to prove these *843facts, as he was seeking to place liability upon the railroad company.
Again the instruction authorizes the jury to take into consideration any pain or suffering caused by the injury prior to the' date of the trial, and also any pain or suffering that may be sustained after this date caused by the injury. In other words, the jury were authorized not only to allow compensation for pain already suffered, and which was disclosed by the evidence, but was allowed to go into the future and allow compensation for all pain and suffering that would, or rather that may be, suffered in the future. The instruction does not tell the jury as to the future pain that the evidence must disclose to them with reasonable certainty the character, duration, and intensity of the pain to be suffered in the future, nor is there any evidence in the record, either expert or other, which would tend to show with any reasonable certainty that there would be any future suffering, or, if there would what kind of suffering, how long it would continue, or any sufficient guide to warrant the jury in reaching out into the future and allowing compensation money for such pain. It was the duty of the plaintiff to show by expert medical testimony the permanency of the injury, if it would be permanent, the amount of pain that he would suffer, if he was to continue suffer'ing pain, and how long such suffering would continue in all reasonable probability, so that the jury could estimate from the evidence rather than from their “inner consciousness” and best judgment how long the plaintiff would suffer from looking at him at the time of the trial. The injury from which the plaintiff was suffering was an injury to the small of his back occasioned by its striking the “bulkhead” or “drawhead” of the car. This injured place seems to have been bruised at the time of the fall, and to have remained in a bruised condition for some time thereafter, but one of the physicians in his examination, testifying as favor*844ably to the plaintiff as he could, says that he could not tell the extent of the injury, or that he was injured at the time of the trial, except, when he would touch the place the plaintiff felt pain. He could not undertake, and did not undertake, do say how long this soreness would remain, what its degree of intensity would be in the future, or to lay any predicate whatever from which the jury could rightfully draw any conclusion on future pain and suffering.
The verdict was for twenty thousand dollars, and it is manifest that this verdict was largely based upon the future pain and suffering, and of the tuberculosis complained of in the sixth instruction, and it is inconceivable how the jury reached any satisfactory result, unless they allowed the plaintiff the full “three score years and ten,” and allowed him to recover for suffering and pain during this period as well as the loss of all earning capacity during that time. It may be true, as stated in the majority opinion, that it is difficult to measure pain and suffering and value it; however, there must be some standard of certainty in the law, and it devolved upon the plaintiff, who has the burden of proof, to establish this standard of certainty. How much did the jury consider the plaintiff would suffer? The evidence is silent. They were left without guide or criterion, but were turned loose in the broadest field of speculation, with permission from the-court to allow for all pain and suffering that may be suffered in the future — not such as the evidence points to with reasonable certainty, but such as, in the unguided determination of the sympathetic jurors, who were doubtless properly influenced by the fact that the plaintiff had a wife and child ten jmars old, who needed the money, would think proper.
The sixth instruction for plaintiff tells the jury that, if it finds for the plaintiff that the defendant is liable for the injury, in considering the damages, if any, if it may believe from all testimony that the plaintiff’s pres*845ent physical condition was proximately caused by the fall and injury to his back, then you may find for the plaintiff, and may assess such compensatory damages for such injury, if any, and although you might further believe the tubercular germ was not and could not be created by the injury, yet if you believe but for his injury, if any, he would not have suffered any injury or damage from the tubercular germ, and that this injury was the proximate cause of his present condition, including the tubercular infection, then you may take his condition into consideration in assessing damages.
This instruction is particularly erroneous because there was no evidence in the record from which the jury could lawfully infer that the tuberculosis of the plaintiff resulted from the injury to his back. The medical experts testified clearly and certainly that the bruised portion of the back was not infected with tubercular germs at all, and testified that unless it was so infected the plaintiff would not have contracted the tubercular germs in the lungs from such injury; that the fall itself did not engender the tubercular germs, and could not do so. The doctors, in the most favorable aspect to the plaintiff, said that the proof of the bruise to his back probably reduced his physical strength and resisting power so as to make the plaintiff a fit subject for attack by tubercular bacilli. There is not the slightest suspicion in the evidence anywhere as to how, or when, or where the plaintiff came into contract with the tubercular germs with which he was affected. If the railroad is responsible at all for the tubercular condition, it could only be held responsible on the theory that the plaintiff’s physical condition was so reduced and weakened by the injury as to make him susceptible to infection. The law would then require the plaintiff to prove that after such injury and while in such condition, and without fault of his own, the plaintiff came in contract with tubercular germs and became infected. Certainly it is up to the plaintiff to prove this. Suppose *846that the plaintiff did come in contact with tubercular germs after his injury through fault of some one else than the defendant. Would not the person whose fault resulted in this infection be the person responsible for his injury rather than the railroad company? If plaintiff had shown the circumstances of his infection as to when, where, and how he came in contact with tuberculosis, we might judge from the facts whether the railroad company was liable, and, if so, the amount of negligence and culpability attaching to the respective parties, and weigh their rights in the light of such facts, but here we are left wholly ignorant of the entire subject-matter, and because the plaintiff was found infected at the trial the jury and court have jumped at the conclusion that he could only have been infected by the agency, the railroad company. There was no medical examination of plaintiff for tuberculosis shown in the record, at least until the very time of the trial, and the sputum was collected at the trial, analyzed by a physician, and the fact established, but not a word of expert testimony otherwise showing the length or duration of the infection, how long it had existed, or from whence it arrived.
It is true that the plaintiff undertook to cover the ground by saying that he had been a healthy man so far as he knew prior to his injury, and that some ninety days after the injury he felt pain in the region of his lungs. In view of the fact, however, that the medical testimony ■in the record shows that the injury could not of itself produce tuberculosis, but could only produce a physical condition favorable to its- being contracted, it is impossible to say in this record that the injury caused the infection at all. The plaintiff may have had the infection already, or he may have contracted it either through his own wrong, or of some other person subsequent to the injury, in neither of which cases would the railroad company be responsible for its existence, and especially for the entire combined injury. ' The *847majority opinion glosses over this phase of the case with the assumption that it is a matter of common knowledge that a weakened physical condition reduces the resisting power against the ravages of this frightful disease, and assumes, apparently, that none but the weak can become infected with tuberculosis. Common experience teaches the contrary, and while the weak are most susceptible to infection than the strong, yet it is a matter of such common knowledge that apparently strong and healthy people are infected and yearly die with the ravages of this disease is too well known to need comment. However well known the hypothesis stated might be, it devolved upon the plaintiff in this ease to show, before recovering from the railroad, that, as a direct and proximate cause of the injury by the railroad, he, the plaintiff, was unavoidably brought into contact with this disease, and that he contracted it as a result of his injury and weakened condition, and that, if he cannot establish these facts, he cannot inflict his misfortunes upon the railroad company. Who can say whether the plaintiff would have had tuberculosis had he not received the injury? Who can say whether he had it or did not have it at the time of the injury? There is no satisfactory evidence in the' record from which any satisfactory conclusion can be drawn upon this subject. It is the merest speculation; a voyage upon a sea of uncertainty; a ship, “floating sport of the tempestuous tide, with no port to shield and no star to guide.”
It is not doubted that in proper cases a railroad company would he liable to a person for negligence which resulted in the injury and infection of a person through fault of the railroad company, such as having infected cars, or carrying a patient into an infected hospital, but before a liability can attach there must always be a wrong and injury by the defendant, and a direct proximate causal connection between the wrong of the company and the injury of the plaintiff.