carriage in attempting to reach his destination, are not consequences which could reasonably be anticipated to follow from setting a passenger down at the wrong station; but that a female passenger might become sick, when compelled to walk several miles on a wet night, is a consequence reasonably to be anticipated to follow such a breach of the contract of carriage as in this case, and is such as may be taken to have been in the contemplation of the parties as fairly flowing from

it.34

§7201. Further of Injuries of Passengers. It must be considered as in the contemplation of the parties that if, in the breach of the contract of carriage, the passenger is placed in such a position that his health is endangered, either by reason of the nature of the exposure, or an account of his feebleness of body, his age, or his being unacclimated, sickness will probably ensue, causing damage to him. Thus, the defendant, a common carrier of passengers, contracted to carry the plaintiff from New York City to San Francisco by way of Nicaragua, but in consequence of the wrecking of the vessel which was to carry him from San Juan del Sur, on the Pacific coast, to San Francisco, he was detained for several weeks upon the Isthmus of Nicaragua, where he became sick with a fever peculiar to that climate and remained sick until long after his arrival in New York City, to which place he was obliged to return. Under these circumstances, it was held proper to receive evidence as to exposure to sun and rain while crossing the isthmus, and the unhealthfulness of the climate; furthermore, that damages should be allowed for loss of time by reason of detention on the isthmus, for his expenses there and the expenses of his return to New York, the time he lost by reason of his sickness after he returned home, and the expense of such sickness.35 Again, where an aged woman was put off in the night-time, at a station upon the defendant's road which was neither open nor lighted and where there was no one to give her information as to where she might obtain shelter, and she wandered away from the depot in search of the highway, and returning, about an hour afterwards, fell down a flight of steps on the premises, it was held-it being assumed that the absence of any light at the depot, or of any person to give information, was negligence on the part of the company-that it was proper to submit the question to the jury whether such negligence was the proximate cause of the injury.36 In

"Compare Patten v. Chicago &c. R. Co., 32 Wis. 524.

"Williams v. Vanderbilt, 28 N. Y. 217 [overruling Briggs v. Vander

steel v. Vanderbilt, 21 Barb. (N. Y.) 26]. See also, Ward v. Vanderbilt, 34 How. Pr. (N. Y.) 144.

30 Patten v. Chicago &c. R. Co., 32

bilt, 19 Barb. (N. Y.) 222, and Bon- Wis. 524.

an English case,37 it appeared that the plaintiff, a person in business, travelling to meet his customers, booked himself by the defendants' railway as a passenger from London to Hull by a train which the defendants advertised to arrive at Hull the same night. On reaching Grimsby, where the defendants' line ended, it was found that the Hull train had left, and, although the plaintiff might have reached Hull that night by taking a special conveyance, he remained at Grimsby and proceeded by train the next morning; but he was too late to reach certain places by the hour he had previously appointed for meeting his customers, and in consequence he was obliged to hire conveyances to see some of his customers elsewhere, and was detained several days waiting for the market-days to see others. It was held that he was only entitled to recover damages to the amount of his hotel expenses at Grimsby and the railway fare the next day to Hull, and was not entitled to recover for any damages whatever occasioned by his not reaching the places where he had engagements to see his customers, by the time he might have reached them if the defendants had performed their contract.

§ 7202. Loss of Profits.-Damages for loss of anticipated profits bear a close relation to damages condemned as remote and speculative. A loss from this source, though not as susceptible of proof, is as clearly suffered as any other sort of loss, and such damages, when refused, are refused not because they are profits, but because of the uncertainty of their realization.38 Thus, in an action for an injury to the plaintiff's business, which was retailing groceries, by negligently constructing a sewer so as to prevent access of the public to his shop, it was held that the "gains and profits which the plaintiff might have made in his business of buying and selling family groceries, pro

37 Hamlin v. Great Northern R. Co., 26 L. J. (Exch.) 20; s. c. 1 Hurl. & N. 408.

Silurian Mineral Spring Co. v. Kuhn, 65 Neb. 646; s. c. 91 N. W. Rep. 508; Raywood Rice &c. Co. v. Langford (Tex. Civ. App.), 74 S. W. Rep. 926. Where, in an action against a railroad for negligently failing to deliver machinery, which caused the shutting down of a flouring mill, the complaint did not allege nor the evidence show that any definite profit was lost, nor that the contract was such as to inform defendant that any loss of special profit would ensue, it was error to admit evidence showing what the special profit would have been during the time the mill was shut

down, as the proper measure of damages was the legal interest on the capital invested, and such other damages as were the direct and necessary result of defendant's negligence: Sharpe v. Southern R. Co., 130 N. C. 613; s. c. 41 S. E. Rep. 799. This case is nearly on "all fours" with the leading case of Hadley v. Baxendale, 9 Exch. 341; s. c. Shirley's Ld. Cas. 239. Anticipated business profits are not allowable in a claim for damages for goods lost by a common carrier. The measure of damages is the net value of the goods at the port of delivery, with interest from the day when they should have arrived: Bazin V. Steamship Co., 3 Wall. Jr. (U. S.) 229.

40

visions, and other merchandise are necessarily uncertain, contingent, and speculative, and therefore incapable of proof as a measure of damages." So, in a case where a bridge obstructed a boat in the navigation of a stream, and the owner of the boat expected to realize profits from the sale of liquors and fruit and to procure certain cotton seed and realize profit from the grain of such seed, the latter profits were regarded as too uncertain and contingent to serve as a basis for a judgment. So, where injuries were caused by the explosion of a boiler on the property of the defendant, it was held that the probable loss of profits which might have been earned by the plaintiff during the rebuilding of his plant could not be recovered. But there is no good reason on principle why a party may not recover for gains prevented, where damages of this kind are certain and are the natural result of the wrong complained of;42 and such damages are constantly recovered without serious question in cases where the particular business has been in successful operation for such time as to give it such permanency that the expected profits can be ascertained with reasonable outlay of effort.43 In such case, proof of the expenses and of the income of the business for a reasonable time anterior to and during the interruption charged, or of facts of equivalent import, is indispensable." Thus, in estimating the damages suffered by the owner of an upper mill from lessening its efficiency by the unlawful increased flowage from below, it has been held that there should be included the loss of profits the mill was reasonably certain to have made but for the decrease of the efficiency of the mill caused by the unlawful flowage. So, in an action against a telegraph company to recover damages for failure to transmit a message containing an order for goods which had before the delivery of the message to the telegraph company been sold by the owner of the message, it was properly held that the profits lost by the failure to receive the goods were not too remote to be the subject of recovery. So, a vessel injured by collision is entitled to recover as demurrage what she would have earned during the period in

45

46

*Simmer v. St. Paul, 23 Minn. 408.

Armistead v. Shreveport &c. R. Co., 108 La. 171; s. c. 32 South. Rep. 456.

"James McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. St. 493; s. c. 56 Atl. Rep. 1067.

"Wittenberg v. Mollyneaux, 60 Neb. 503; Paul E. Wolfe Shirt Co. V. Frankenthal, 96 Mo. App. 307; Kitchen Bros. Hotel Co. v. Philbin, 2 Neb. (unof.) 340; s. c. 96 N. W. Rep. 487.

Central Coal &c. Co. v. Hartman,

111 Fed. Rep. 96; s. c. 49 C. C. A. 244; States v. Durkin, 65 Kan. 101; s. c. 68 Pac. Rep. 1091; National Fibre Board Co. v. Lewiston &c. Electric Light Co., 95 Me. 318; s. c. 49 Atl. Rep. 1095.

"Central Coal &c. Co. v. Hartman, 111 Fed Rep. 96; s. c. 49 C. C. A. 244.

45 National Fibre Board Co. V. Lewiston &c. Electric Light Co., 95 Me. 318; s. c. 49 Atl. Rep. 1095.

46

16 Walden v. Western Union Tel. Co., 105 Ga. 275; s. c. 31 S. E. Rep. 172.

which she was delayed during the season of navigation by the collision, less the expenses.*7

§ 7203. Oversight of Business Prevented by Injury, Causing Loss of Profits. Evidence of loss sustained by the plaintiff in his business in consequence of a personal injury is proper, to aid the jury in estimating the plaintiff's damages; and for that purpose the nature of the plaintiff's business, its extent, and the importance of his personal oversight and superintendence in conducting it, may be shown.48 Thus, the plaintiff, a lawyer, was struck by a bar of iron which projected from a construction-train passing the car in which he sat. The injuries resulting from this blow were of a painful and permanent nature, some of the important effects of which would probably continue during life and sensibly abridge the period of the same. The plaintiff was in early manhood, engaged in an extensive practice, which was impaired by his subsequent inability to give it the requisite attention, and he was afflicted with bodily derangements that measurably unfitted him for the duties of his profession. It was held that, the object of the law being fairly to compensate a party injured through the negligence of another, the pecuniary losses resulting from the plaintiff's inability to attend to his business formed a proper item of damages, and that, under the circumstances of the case, the court had no data from which it could say that a verdict of $20,000 for the plaintiff was too much.49 But in another case, under an allegation, in a complaint for personal injuries, that the plaintiff was a restaurant keeper, and did the cooking, and that by reason of the accident he had been compelled to hire another cook, to his damage in a stated sum, evidence of the estimated profits of the plaintiff's business during the time the injuries incapacitated him from working was held inadmissible on the question of damages.50 In still another case, involving a like principle, it was held that damages for loss of anticipated profits of a theatrical troupe from its engagement immediately following injury to one of the members of the company were not recoverable in the absence of a definite contract for the carriage within a given time, with such reasons for its making as would naturally lead the carrier to contemplate the profits the troupe expected to realize.50a

The Bulgaria, 83 Fed. Rep. 312. 49 Chicago &c. R. Co. v. Scheinkoenig, 62 Kan. 57; s. c. 61 Pac. Rep. 414; Hart v. New Haven, 138 Mich. 181; s. c. 89 N. W. Rep. 677; 8 Det. Leg. N. 1175; Markowitz v. Metropolitan St. R. Co., 31 Misc. (N. Y.) 175; s. c. 63 N. Y. Supp. 961; Lincoln v. Saratoga &c. R. Co., 23 Wend. (N. Y.) 425; Muench V.

Heinemann, 119 Wis. 441; s. c. 96
N. W. Rep. 800.

49 Walker v. Erie R. Co., 63 Barb. (N. Y.) 260.

50 Lombardi v. California Street Cable R. Co., 124 Cal. 311; s. c. 57 Pac. Rep. 66.

50a Southern &c. R. Co. v. Myers, 87 Fed. Rep. 149; s. c. 58 U. S. App. 131.

55

$7204. Past and Prospective Damages may be Recovered.-An action for injuries to the person may be brought at any time after the injuries occur, within the time fixed by the statute of limitations, and but one action can be brought therefor.51 Such an action is unlike that for a continuing nuisance,52 or for enticing a servant away where the servant was apprenticed for a term of years,53 or for enticing a wife away, or for the continuation of false imprisonment after action brought, or for trespass upon land.56 In the case of actions for injuries to the person, the cause of action is founded on the wrong and damage combined, and a new action cannot be brought simply because new damage ensues without new wrong; while in the other cases mentioned, as in the case of false imprisonment after action brought, a new action may be brought for all damage which is sustained subsequent to the bringing of the former suit. "Where successive actions may be brought for a continuous wrong, as in the case of a trespass upon land, the damages in each suit are very properly limited to those sustained by the plaintiff at its commencement; but for an injury to the person, resulting from a single act, a single action only can be brought, and it therefore would be manifestly unjust not to take into consideration, upon the trial, the nature and extent of the injury in all its consequences; since by not so doing, the plaintiff, in many cases, would be deprived of the larger portion of the compensation he might justly claim, and the damages given be wholly disproportioned to the injury sustained." Therefore, in an action for an injury to his person, the plaintiff may recover not only the damage he has sustained up to the time of bringing the suit, but also all prospective damages which the evidence renders it reasonably certain must necessarily result from the injury.58 And it follows that where the evidence shows

"Wallace v. Wilmington &c. R. Co., 8 Houst. (Del.) 529; s. c. 18 Atl. Rep. 818; Curtiss v. Rochester &c. R. Co., 20 Barb. (N. Y.) 282, 292; 8. c. aff'd, 18 N. Y. 534.

"North Vernon v. Voegler, 103 Ind. 314; s. c. 1 West. Rep. 566; Hopkins v. Atlantic &c. R. Co., 36 N. H. 9.

Whitney v. Clarendon, 18 Vt. 252; Hambleton v. Veere, 2 Saund. 169.

Whitney v. Clarendon, 18 Vt. 252; Ward v. Rich, 1 Vent. 103. "Whitney v. Clarendon, 18 Vt. 252; Brasfield v. Lee, 1 Ld. Raym.

329.

"Caldwell v. Murphy, 1 Duer (N. Y.) 233, 240.

Caldwell v. Murphy, 1 Duer (N. Y.) 233, 240.

58 Bay Shore R. Co. v. Harris, 67 Ala. 6; Barbour County v. Horn, 48 Ala. 566; Wallace v. Wilmington &c. R. Co., 8 Houst. (Del.) 529; s. c. 18 Atl. Rep. 818; Allen B. Wrisley Co. v. Burke, 203 Ill. 250; s. c. 67 N. E. Rep. 818; Cicero &c. R. Co. v. Brown, 89 Ill. App. 318; Frink v. Schroyer, 18 Ill. 416; Cleveland &c. R. Co. v. Newell, 104 Ind. 264; s. c. 1 West. Rep. 896; Collins v. Council Bluffs, 32 Iowa 324; Lamb v. Cedar Rapids, 108 Iowa 629; s. c. 79 N. W. Rep. 366; Stafford v. Oskaloosa, 64 Iowa 251; Black v. Carrollton &c. R. Co., 10 La. An. 33; Baltimore &c. R. Co. v. Trainor, 33 Md. 542; Gilbert v. Kennedy, 22 Mich. 117; Sherwood v. Chicago &c. R. Co., 82 Mich. 374; s. c. 44 Am. & Eng. R. Cas. 337; 46 N. W. Rep. 773; Wilton