§ 7315. Pain and Suffering a Proper Element.-The physical pain1 and mental suffering2 endured by the plaintiff in consequence of his

1

injury are properly the subjects of damages for which he is entitled to be compensated; and it may be observed that there is no form of injury for which damages are authorized by the law more real and substantial or more deserving of recompense, and at the same time more impossible of satisfactory measurement than these results of physical injuries; but the impossibility of their definite measurement is not an obstacle to their allowance in proper cases.3

$7316. No Certain Standard for Measuring Damages for Suffering. -In the nature of the case no certain standard or gauge by which to measure the damages to be allowed for this class of injury can be stated that will admit of general application. The amount must in all cases be left to the good sense and sound judgment of the jury;5 or, as the same idea is more sonorously expressed by some courts, the amount must be left to the "enlightened conscience and intelligence of impartial jurors," who are to consider the facts and circumstances proved in the light of their knowledge, observance and experience of the affairs of life."

$7317. Direct Evidence of Suffering Not Required.-Owing to its nature the fact or extent of suffering is difficult of proof by direct evidence, and the law does not require such evidence. It is sufficient that an injury is proved from which suffering will naturally result.

N. Y. Supp. 84; Pennsylvania &c.
Canal Co. v. Graham, 63 Pa. St. 290;
Texas &c. R. Co. v. Douglass, 73
Tex. 325; s. c. 11 S. W. Rep. 333;
Stewart v. Ripon, 38 Wis. 587; Ken-
non v. Gilner, 131 U. S. 22; s. c. 33
L. ed. 110; 9 Sup. Ct. Rep. 696;
Ware v. St. Paul Water Co., 1 Dill.
(U. S.) 465; s. c. 3 Chic. Leg. N. 41.
'Birmingham v. Lewis, 92 Ala.
352; s. c. 9 South. Rep. 243; South-
ern Bell Telephone Co. v. Jordan,
87 Ga. 69; s. c. 13 S. E. Rep. 202;
Cowan v. Western Union Tel. Co.,
122 Iowa 379; s. c. 98 N. W. Rep. 281.
'Salina Mill &c. Co. v. Hoyne, 10
Kan. App. 579; s. c. 63 Pac. Rep.
660.

Lindvall v. Woods, 44 Fed. Rep. 855; Fowler v. Broadway &c. R. Co., 59 Hun (N. Y.) 623; s. c. 36 N. Y. St. Rep. 806; 13 N. Y. Supp. 453; Horn v. Boise City Canal Co., 7 Idaho 640; s. c. 65 Pac. Rep. 145.

"Southern R. Co. v. Gresham, 114 Ga. 183; s. c. 39 S. E. Rep. 883; Western &c. R. Co. v. Young, 81 Ga. 397; s. c. 7 S. E. Rep. 912.

North Chicago St. R. Co. v. Fitzgibbons, 180 Ill. 466; s. c. 52 N. E. Rep. 483; aff'g s. c. 79 Ill. App. 632; Western &c. R. Co. v. Young, 81 Ga. 397; s. c. 7 S. E. Rep. 912.

Gagnier v. Fargo, 12 N. D. 219; s. c. 96 N. W. Rep. 841; Gosa v. Southern R. Co., 67 S. C. 347; s. c. 45 S. E. Rep. 810; Brown v. Sullivan, 71 Tex. 470; s. c. 10 S. W. Rep. 288; Missouri &c. R. Co. v. Oslin, 26 Tex. Civ. App. 370; s. c. 63 S. W. Rep. 1039; Galveston &c. R. Co. v. Hubbard (Tex. Civ. App.), 70 S. W. Rep. 112 (no off. rep.); Galveston &c. R. Co. v. Hubbard, Tex. Civ. App. ; s. c. 76 S. W. Rep. 764; Houston &c. R. Co. v. Jackson (Tex. Civ. App.), 61 S. W. Rep. 440; Houston &c. R. Co. v. White (Tex. Civ. App.), 61 S. W. Rep. 436; International &c. R. Co. v. Mitchell (Tex. Civ. App.), 60 S. W. Rep. 996 (no off. rep.); International &c. R. Co. v. Rhoades, 21 Tex. Civ. App. 459; s. c. 51 S. W. Rep. 517.

This does not mean that pain or suffering may not be shown. The doctrine merely goes to the extent of holding that such evidence is not absolutely essential to the recovery. Evidence of this character is proper and often admitted." Thus in an action for personal injuries to a child, the plaintiff was allowed to introduce evidence with reference to the appearance of the child's face as indicating the pain and suffering, and complaints made by him, and the fact that he cried at great deal.10 In another case it was held proper to allow the injured person to state that she worried a good deal about her condition, since worry is an element of mental suffering.11 In another case, evidence that before the accident the disposition of the injured party was pleasant, and that after the injury he was depressed and melancholy, was held admissible to show that he suffered physical pain and mental anguish on account of his injuries.12 In still another case where damages were sought for injuries to a switchman, evidence was allowed as to a bruise on the plaintiff's back which sloughed out, and other evidence as to its treatment to show the extent of his suffering.13 The rule allows proof of manifestations and declarations of present pain,1 though they were made long after the accident,15 but not where they

❞ Sanders V. O'Callaghan, 111 Iowa 574; s. c. 82 N. W. Rep. 969; Omaha St. R. Co. v. Emminger, 57 Neb. 240; s. c. 77 N. W. Rep. 675; Zingrebe v. Union R. Co., 56 App. Div. (N. Y.) 555; s. c. 67 N. Y. Supp. 554; International &c. R. Co. v. Anaconda (Tex. Civ. App.), 68 S. W. Rep. 743. In an action for injuries reducing a healthy, vigorous man to a physical wreck, mental anguish being a proper subject for damages, it is proper for such person to testify as to his mental suffering in contemplating his crippled condition and brooding over his future prospects: Missouri &c. R. Co. v. Miller, 25 Tex. Civ. App. 460; s. c. 61 S. W. Rep. 978. In an action to recover for personal injuries sustained by reason of a collision with a street car, testimony that witness saw plaintiff a few days after the accident, and that he was limping, is competent, as showing present pain: City Railway Co. v. Wiggins (Tex. Civ. App.), 52 S. W. Rep. 577. Where, in an action for injuries alleged to have been occasioned by defendant's negligence in failing to erect a barrier on a street abutting a river, into which complainant fell, it is alleged that, by being precipitated into the river, complainant received a serious nerv

ous and mental shock, testimony
of plaintiff as to her mental and
nervous condition after she re-
ceived the injury is admissible:
San Antonio v. Porter, 24 Tex. Civ.
App. 444; s. c. 59 S. W. Rep. 922.
Testimony, in an action for per-
sonal injury, that plaintiff "looked
bad," that apparently she could
scarcely walk, and that she lifted
her foot very tenderly, is admis-
sible: Bailey V. Centerville, 108
Iowa 20; s. c. 78 N. W. Rep. 831.
10 Fishburn v. Burlington &c. R.
Co.,
Iowa
- s. c. 98 N. W. Rep.

380.

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11 Webb v. Yonkers R. Co., 51 App. Div. (N. Y.) 194; s. c. 64 N. Y. Supp. 491.

12 Gulf &c. R. Co. v. Moore, 28 Tex. Civ. App. 603; s. c. 68 S. W. Rep. 559. See also, McGrew v. St. Louis &c. R. Co., 32 Tex. Civ. App.. 265; s. c. 74 S. W. Rep. 816.

13 Illinois Cent. R. Co. v. Stewart, 23 Ky. L. Rep. 637; s. c. 63 S. W. Rep. 596.

14 Buce v. Elson, 122 Iowa 92; s. c. 97 N. W. Rep. 989; Omaha St. R. Co. v. Emminger, 57 Neb. 240; s. c. 77 N. W. Rep. 675. See also, post, § 7734.

15 Beath v. Rapid R. Co., 119 Mich. 512; s. c. 78 N. W. Rep. 537.

are objectionable as self serving, as would very clearly be the case with exclamations of pain by man of mature years uttered after he has commenced an action and shortly before the trial.16 The question whether the injured person suffered damages by reason of pain is solely a question of fact for the jury, and not one of law for the court.17

§ 7318. Recovery may be had for Future Suffering.-The damages recoverable for physical pain and mental suffering are not limited. to those already endured, but may include suffering reasonably certain to be experienced in the future as the proximate result of the injury.18

But damages for injuries which are merely possible are not to be allowed: the law requires proof of a reasonable certainty that they will be endured thereafter. 19 It is not strictly essential that such damages should be alleged or that a distinct claim for their allowance should be made;20 nor is it required that this fact should be definitely proved: proof is sufficient which shows a permanent injury of such a character that future suffering and pain will, with reasonable certainty, result therefrom.21 Thus, it has been held that testimony that an injured passenger was still suffering from headache and from a buzzing pain in her ear, and that her weight had been reduced twenty pounds, and testimony by her physician that he found, in addition to her other injuries, bleeding of the ear and swelling of the head, and that the injury to her head amounted to concussion of the brain, was sufficient to justify a charge on future pain and suffering.22 So, an allegation, in a complaint for injuries sustained from an attack by the defendant's dog, that the plaintiff had suffered great pain, has been held sufficient to authorize proof of future physical and mental suffering.23 Under this principle an instruction on future mental suffering is justified in an action for personal injuries by an allegation in the complaint that plaintiff had sustained permanent injuries and had suffered great physical pain.24

§ 7319. The Physical Pain and Suffering for which Damages may be Allowed. The physical pain and suffering for which a recovery

error in instructing the jury that, in assessing damages, they might take into account what they might believe, from the evidence, plaintiff would suffer: International &c. R. Co. v. Locke (Tex. Civ. App.), 67 S. W. Rep. 1082.

19 Ford v. Charles Warner Co., 1 Marv. (Del.) 88; s. c. 37 Atl. Rep. 39; Westercamp v. Brooks, 115 Iowa 159; s. c. 88 N. W. Rep. 372. An instruction that the jury might assess damages for such physical and mental suffering as plaintiff would be compelled to undergo in the future, and for such damages as he would actually sustain, if his injuries were permanent, required a higher degree of certainty of such injury than was justified, plaintiff being entitled to recover damages for such damages and impairment of abilities as he is reasonably certain to endure: Yerkes v. Northern Pac. R. Co., 112 Wis. 184; s. c. 88 N. W. Rep. 33.

20 Wright v. Compton, 53 Ind. 337; Westercamp v. Brooks, 115 Iowa

159; s. c. 88 S. W. Rep. 372; Smith v. Sioux City, 119 Iowa 50; s. c. 93 N. W. Rep. 81; Brown v. Hannibal &c. R. Co., 99 Mo. 310; s. c. 12 S. W. Rep. 655; 42 Am. & Eng. R. Cas. 87; Kennedy v. St. Louis Transit Co., 103 Mo. App. 1; s. c. 78 S. W. Rep. 77. One who received bodily injuries through the negligence of another was, under a general allegation of mental suffering, alowed to recover for the shame and mortification of being obliged to use a crutch and cane: Beath v. Rapid R. Co., 119 Mich. 512; s. c. 78 N. W. Rep. 537.

21 Clarke v. Westcott, 158 N. Y. 736; s. c. 53 N. E. Rep. 1124; aff'g s. c. 2 App. Div. (N. Y.) 503; 37 N. Y. Supp. 1111.

22

Radjaviller v. Third Ave. R. Co., 58 App. Div. (N. Y.) 11; s. c. 68 N. Y. Supp. 617.

23 Triolo V. Foster (Tex. Civ. App.), 57 S. W. Rep. 698 (no off. rep.).