Dr. Charles Beymer, called by respondent on the question of the injuries alleged to have been sustained, testified:
"Q. And what in your opinion, or for how long, in your opinion, would you expect that to continue, Doctor?
"A. That is impossible to say.
"Q. What did you mean Doctor, when you said it was impossible to say how long her present condition may continue?
"A. Well, you have several factors there, when you say it's impossible to tell; one is the ulceration which you had on the heel; the other is the accommodation of the body and the axis to the difference in alignment of your bone and the weight carried. I don't know how you're going to evaluate your length of time there that this might continue.
"Q. Do injuries of this kind continue throughout life, Doctor?
"A. No, not necessarily.
"Q. I will ask you in your opinion whether you consider the plaintiff has sustained a permanent injury on account of this accident?
"A. I don't think you can answer that question yes or no at this time.
"Q. As I understand it now, Doctor, you can't say whether or not there is or is not permanent injury suffered by this plaintiff?
"A. You cannot say."
Appellant requested and the court refused to give the following instruction: *Page 690
"The court instructs the jury that if you should find for the plaintiff in this case, that in assessing her damages you will not be permitted to consider the element of permanent injury for the reason that there is no evidence to the effect that plaintiff has suffered permanent injuries."
Respondent alleged she suffered a permanent injury "in the use of her left limb." The burden was upon her to prove that element of damage. It is clear from the above-quoted testimony, by which she is bound, respondent not only failed to prove permanent injury by a preponderance of the evidence, but, on the contrary, proved it could not be determined her injuries were permanent, at the time of the trial. Hence it was error to refuse to give the requested instruction. Other than that, I concur in the majority opinion.