Supreme Court of United States.
*551 Mr. Edgar M. Johnson (Mr. George Hoadly and Mr. Edward *552 Colston were with him on the brief), for plaintiff in error.
Mr. Hoke Smith, for defendant in error.
*553 MR. JUSTICE GRAY delivered the opinion of the court.
This was an action against a railroad corporation for personal injuries received on September 16, 1881 by a passenger, then forty nine years of age. The verdict was for the plaintiff in the sum of $16,000. and the defendant tendered a bill of exceptions and sued out this writ of error.
Some of the exceptions relate to rulings and instructions on the question of the defendant's liability, and others to the measure of damages. Those relating to the defendant's liability present no serious difficulty.
There being evidence tending to show that the accident was caused by a worn-out rail, it was, to say the least, within the discretion of the court to admit evidence that the general condition of that portion of the road which included the place where the accident occurred had long been bad, and that the rails had been in use for a great many years. Such evidence had some tendency to prove both that a worn-out rail was the cause of the accident, and that the defendant had neglected to repair the defect. The reports made by the superintendent to the board of directors in the course of his official duty were competent evidence, as against the corporation, of the condition of the road.
In the courts of the United States, as in those of England, from which our practice was derived, the judge, in submitting a case to the jury, may, at his discretion, whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts; and the expression of such an opinion, when no rule of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury, cannot be reviewed on writ of error. Carver v. Jackson, 4 Pet. 1, 80; Magniac v. Thompson, 7 Pet. 348, 390; Mitchell v. Harmony, 13 How. 115, 131; Transportation Line v. Hope, 95 U.S. 297, 302; Taylor on Evidence, (8th ed.) § 25. The powers of the courts of the United States in this respect are not controlled by the statutes of the State forbidding judges to express any opinion upon the facts. Nudd v. Burrows, 91 U.S. 426; Code of Georgia, *554 § 3248. The exceptions to so much of the judge's charge as bore upon the liability of the defendant cannot therefore be sustained.
We are then brought to a consideration of the exceptions which relate to the evidence admitted and the instructions given upon the measure of damages.
In an action for a personal injury, the plaintiff is entitled to recover compensation, so far as it is susceptible of an estimate in money, for the loss and damage caused to him by the defendant's negligence, including not only expenses incurred for medical attendance, and a reasonable sum for his pain and suffering, but also a fair recompense for the loss of what he would otherwise have earned in his trade or profession, and has been deprived of the capacity of earning, by the wrongful act of the defendant. Wade v. Leroy, 20 How. 34; Nebraska City v. Campbell, 2 Black, 590; Ballou v. Farnum, 11 Allen, 73; New Jersey Express Co. v. Nichols, 3 Vroom, 166, and 4 Vroom, 430; Phillips v. London & Southwestern Railway, 4 Q.B.D. 406, 5 Q.B.D. 78, and 5 C.P.D. 280; S.C., 49 Law Journal (Q.B.) 233.
In order to assist the jury in making such an estimate, standard life and annuity tables, showing at any age the probable duration of life, and the present value of a life annuity, are competent evidence. The D.S. Gregory, 2 Benedict, 226, 239, affirmed 9 Wall. 513; Rowley v. London & Northwestern Railway, L.R. 8 Ex. 221; Sauter v. New York Central Railroad, 66 N.Y. 50; McDonald v. Chicago & Northwestern Railroad, 26 Iowa, 124, 140; Central Railroad v. Richards, 62 Georgia, 306.
But it has never been held that the rules to be derived from such tables or computations must be the absolute guides of the judgment and the conscience of the jury. On the contrary, in the important and much-considered case of Phillips v. London & Southwestern Railway, above cited, the judges strongly approved the usual practice of instructing the jury in general terms to award a fair and reasonable compensation, taking into consideration what the plaintiff's income would probably have been; how long it would have lasted, and all the *555 contingencies to which it was liable; and as strongly deprecated undertaking to bind them by precise mathematical rules in deciding a question involving so many contingencies incapable of exact estimate or proof. See especially the opinions of Lord Justice Brett and Lord Justice Cotton, as reported in 49 Law Journal (Q.B.) 237, 238, and less fully in 5 C.P.D. 291, 293.
In the present case, it was not suggested by the defendant at the trial that the life tables admitted in evidence were not standard tables, or not duly authenticated. The only ground assigned for the objection to their competency was that "the plaintiff had not shown a case in which such evidence is admissible, the plaintiff not having been killed permanently or disabled" probably meaning "killed or permanently disabled." It is a sufficient answer to this objection, that there was evidence from which the jury might conclude that the plaintiff's disability was permanent.
But the instructions on the measure of damages, to which exception was taken, cannot be approved.
Those instructions were, 1st, that the plaintiff having lost his time, the presumption would be that he lost his salary, and that would be an element of damage which the jury could ascertain with certainty; and, 2d, that the company was bound to give the plaintiff an annuity of the amount he had been damaged by the year, for a period equal to the expectation of his life.
As the judge directed the jury to add the worth of such an annuity at the time of the accident to the amount allowed for loss of time, including the loss of salary, it would seem that the jury were permitted, in making up their verdict, to take into consideration twice over the earnings lost by the plaintiff between the time of the accident and the time of the trial.
But the second instruction is open to the more serious objection of requiring the jury, in estimating the loss of future income, to compute the average amount of injury to the plaintiff's capacity each year, even if they should be satisfied, on the evidence before them, that the effect of that injury would vary from year to year, and would be either greater or less as time went on.
A reference to the rest of the charge rather strengthens than *556 removes this objection. At the beginning of that part of the charge which relates to this subject, the judge told the jury: "To find out what he was capable of making, you must find out what he did make, and then how much his capacity to do his former duties was injured; and, having ascertained that, find out how old he is; then find out how much he is damaged every year, and then find out from the table which you will have out before you how much $1 of annuity to the end of his expectation is worth, and multiply the three together." In the last paragraph of the charge, just before the sentence excepted to, the judge told the jury that, in arriving at the amount of liability, they must "find out what he has been injured by the year." And finally, after causing the annuity table to be marked opposite forty nine years of age, he directed the jury "to find a verdict, first, for the pecuniary damage; next, the pain, if he has suffered any; next, the loss per year; multiply by the amount you find in that table, and add the three together."
The natural, if not the necessary, effect of these peremptory instructions at the beginning and end of dealing with this matter would be to lead the jury to understand that they must accept the tables as affording the rule for the principal elements of their computation, and to create an impression on their minds, which would not be removed by the incidental observation of the judge, when speaking of the possibility of the plaintiff's getting well "This is only one mode of arriving at it;" especially, as it was nowhere, throughout the charge, suggested to the jury that they would be at liberty, if they found difficulty in following the mathematical rules prescribed to them, to estimate the loss of income according to their own judgment.
Life and annuity tables are framed upon the basis of the average duration of the lives of a great number of persons. But what the jury in this case had to consider was the probable duration of this plaintiff's life, and of the injury to his capacity to earn his livelihood. Upon the evidence before them, it was a controverted question whether that injury would be temporary or permanent. The instruction excepted to, either taken by itself or in connection with the whole charge, tended *557 to mislead the jury, by obliging them to ascertain the average injury to the plaintiff's capacity by the year, whether the extent of that injury would be constant or varying; and by giving them to understand that the tables were not merely competent evidence of the average duration of human life, and of the present value of life annuities, but furnished absolute rules which the law required them to apply in estimating the probable duration of the plaintiff's life, and the extent of the injury which he had suffered. For this reason the
Judgment is reversed, and the case remanded to the Circuit Court, with directions to set aside the verdict and to order a new trial.
