Statement of Facts.

entitled to some compensation for the pain and suffering. Now, that is left to the enlightened consciences of the jury. "There is another element of damage, as claimed in this case, which is less certain; to wit, a kind of speculative damage, in which it is ascertained what a man would make at the time of the accident and what he was capable of making afterward. 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 them together.

"As I said, all this is not very certain. You cannot ascertain it to a certainty for several reasons. No man can tell how long a man is going to live, but you can come close to it; you can tell about how many out of ten thousand are going to die per year. You must only average it. A man who makes a good deal of money one day may get to be a drunkard, or his whole business may break down, as is often the case. His mode of life may change.

"Find out what that man is capable of making. His testimony is he had a salary of $3000, and he had a trade, to wit, an adjuster. That was his profession. He said he made $700 to $1000 as an adjuster. Now, you take this $3000 and what he could have made otherwise, what he has shown he did make otherwise, and find out what he did make in one year. Find out from the proof how much he has lost. There is his own testimony, and it is to be taken like the testimony of every other party at interest; his own testimony is he could not carry on his old business. It required an amount of exercise and travel which would be perfectly impossible for him to take, and he had to go back into a business by the month, where he could have an office and where he would be at expense. Under his contract there would be no expense; they paid his expenses. As an adjuster he had his expenses paid, and $10 a day. Now, in the new business he still keeps up a small business of adjuster. He gets $175 a month.

Argument for Plaintiff in Error.

"I say to you that the kind of damage we are now discussing cannot be sure, certain. He may be damaged more or less now, next year he may be better. This is only one mode of arriving at it. You must take the whole thing together. He may get well. The doctors tell you the chances are that things of this sort are permanent. He may get well or he may not. Try to do what is right and just between the parties. You cannot be accurate as to this kind of damage, you can only approximate.

"Now if, under all these rules, you find the defendant is liable, then find the amount of his liability. In arriving at the amount of liability, as I said before, there are two things you must find; first, how much is the actual pecuniary damage he has sustained, the loss of the time and doctor's bill; second, his pain and suffering for the future; and, third, you will find out what he has been injured by the year. The company is bound to give him an annuity of the amount he has been damaged by the year, for a period equal to the expectation of the plaintiff's life. It would not do to say this: His expectation is thirty years, and he has lost $1000 a year, therefore we will give him $30,000; for the annuity will be payable one part this year and another part next year, and each of the thirty parts payable each of the thirty years. You must have a sum such that when he dies it will all be used up at the end of thirty years." [The judge then directed the plaintiff's counsel to mark the table that has got the calculation;" and, after the annuity table had been marked opposite forty nine years of age, proceeded:] "Add that to the present worth of annuity

66

if you find he was damaged. Find, gentlemen, 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, and your verdict would be just a general verdict for the amount found."

The jury returned a verdict for the plaintiff in the sum of $16,000, and the defendant brought the case to this court by writ of error.

Mr. Edgar M. Johnson (Mr. George Hoadly and Mr. Ed

Argument for Defendant in Error.

ward Colston were with him on the brief), for plaintiff in error, cited Nelson v. The C. R. I. & P. R. R. Co., 38 Iowa, 564; Simonson v. The C. R. I. & P. R. R. Co., 49 Iowa, 87; Rowley v. London & Northwestern Railway Co., L. R., 8 Ex. 221; Bristow v. Sequeville, 5 Exch. 275; Milwaukee & St. Paul Railway Co. v. Arms, 91 U. S. 489; Scheffler v. Minneapolis & St. Louis Railway Co., 19 Am. & Eng. Railroad Cas. 173.

Mr. Hoke Smith, for defendant in error, cited Central Railroad Co. v. Richards, 62 Georgia, 307; Atlanta & West Point Railroad v. Johnson, 66 Georgia, 260; McDonald v. Chicago & Northwestern Railroad, 26 Iowa, 139; Missouri & Pacific Railway v. Collier, 18 Am. & Eng. Railroad Cas. 281; Holyoke v. Grand Trunk Railway, 28 N. H. 541; Brown v. Piper, 91 U. S. 37, 42; Terhune v. Phillips, 99 U. S. 592; King v. Gallun, 109 U. S. 99; Adams Mining Co. v. Leuter, 26 Mich. 73; Sacalaris v. Eureka & Palisade Railway, 18 Nevada, 155; United States v. Gooding, 12 Wheat. 460, 470; Barry v. Foyles, 1 Pet. 311; American Fur Co. v. United States, 2 Pet. 358; Cliquot's Champagne, 3 Wall. 114; Malecek v. Tower Grove & Lafayette Railway, 57 Missouri, 17; Norwich & Worcester Railroad v. Cahill, 18 Conn. 484; Central Branch Union Pacific Railroad v. Butman, 22 Kansas, 639; Nudd v. Burrows, 91 U. S. 426; Indianapolis & St. Louis Railroad v. Horst, 93 U. S. 291; Transportation Line v. Hope, 95 U. S. 297, 302; Mitchell v. Harmony, 13 How. 115, 131; Magniac v. Thompson, 7 Pet. 348; Stokes v. Saltonstall, 13 Pet. 181; Railroad Co. v. Pollard, 22 Wall. 341; Pennsylvania Co. v. Roy, 102 U. S. 451; Ames v. Quimby, 106 U. S. 342; The Belgenland, 114 U. S. 355; Orleans v. Platt, 99 U. S. 676; Marion County v. Clarke, 94 U. S. 278; Schofield v. Chicago & St. Paul Railway, 114 U. S. 618; Pleasants v. Fant, 22 Wall. 116; Pence v. Langdon, 99 U. S. 578; Herbert v. Butler, 97 U. S. 319; Decatur Bank v. St. Louis Bank, 21 Wall. 294; Phanix Ins. Co. v. Doster, 106 U. S. 30; Hendricks v. Lindsay, 93 U. S. 143; Lancaster v. Collins, 115 U. S. 222, 227.

Opinion of the Court.

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,

Opinion of the Court.

§ 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