The plaintiff’s intestate while at work upon a platform, by reason of a defect, for which the defendant is liable, fell a distance of about twenty feet to the ground. The evidence tended to show that he became unconscious immediately upon striking the ground, though there was conflicting evidence as to whether he regained consciousness before his death which occurred about thirty-six hours after the accident.
The instruction that the cause of action survived was correct. Even if the intestate became instantly insensible and so remained until his death, so that nothing could be recovered for any physical or mental suffering, yet the plaintiff might be able to show substantial damages in the expenses and loss incurred beforo death, by reason of the accident. Bancroft v. Boston Worcester Railroad, 11 Allen, 34. The defendant now concedes the correctness of phis instruction, and excepts only to the last clause, which it contends allowed the jury to find substantial damages for the mental suffering of the intestate from the time he fell until he struck the ground. The only question we have to consider is the correctness of this last instruction.
*92It may be true, as an abstract proposition of law, that if a man is precipitated from a height by the negligence of another, and is injured, he may recover, as one element of his damages, for any mental suffering he may prove he endured during his fall. But we think that the instruction, applied to the facts of this case, had a tendency to mislead the jury to the prejudice of the defendant.
The plaintiff was entitled to recover only such damages as she proved were sustained by her intestate. The burden of proof was upon her to show that the intestate endured mental suffering during the fall, before the jury could allow any damages on that account. But the evidence in the case showed that the intestate became unconscious upon striking the ground. The fall occupied but an instant of time. He could not furnish and did not furnish any proof as to his mental condition during the fall. Whether he suffered any mental terror or distress is purely a matter of conjecture. The plaintiff therefore could recover nothing on this account. But the instruction given naturally led the jury to suppose that they might give the plaintiff substantial damages for the mental suffering of the intestate during the fall.
The jury returned a verdict for the plaintiff for a considerable sum. It may be that the verdict was based upon a finding that the intestate regained his consciousness before his death, and thus was entitled to substantial damages for his bodily and mental sufferings. But it may be that the jury found that he remained unconscious until his death, and that they awarded substantial damages for his mental suffering during the fall and before he became unconscious.
We are therefore of opinion that there should be a new trial.
¡Exceptions sustained.