A further exception was taken to the charge that the jury could award, as part of the plaintiff's recovery, damages for future loss of services, and future pain and suffering. The charge was proper ( Filer v. R.R. Co., 49 N.Y. 42; Schuler v. Third Ave. R.R. Co., 1 Misc. 351) and authorized by the evidence. It appeared from the plaintiff's testimony that before the accident he had been earning from fifteen to twenty dollars per week in his trade, which was that of a painter and paperhanger; that as a result of his injuries one of his legs became somewhat shorter than the other, thus impeding his work and reducing his earning capacity; and that at the time of the trial he was still subject to occasional pain and physical anguish.
Under these allegations it was error to strike out the evidence. Ehrgott v. Mayor, 96 N.Y. 265; Filer v. N.Y.C.R.R. Co., 49 id. 42; Tyler v. Third Ave. R.R. Co., 18 Misc. 165; Tuomey v. O'Reilly, Skelly Fogarty, 1 Misc. Rep. 351; 52 N.Y. St. Repr. 122; Schuler v. Third Ave. R.R. Co., 3 Misc. 302; 48 N.Y. St. Repr. 663. The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide event.
A further exception appears to the admission of plaintiff's testimony which tended to show that his injury was continuous. Under a general allegation of damages plaintiff was entitled to prove and recover for pain and suffering endured up to the time of the trial as well as for such pain and suffering as he was reasonably certain to endure thereafter. We so ruled in Schuler v. Third Ave. R.R. Co., 1 Misc. 351, following the adjudications there collated. It appeared in evidence that the truck with which plaintiff collided bore the name of defendants' firm.
The question was plainly intended to elicit the fact of the continued effect of the injury upon the witness, and, construing the action, as we do, to be one for negligence against the appellant-defendant, plaintiff was entitled, under a general allegation of damage, to have included in her recovery, compensation for the pain and suffering endured up to the time of trial, and to be thereafter endured. Schuler v. Third Ave. R.R. Co., 1 Misc. 351. An exception was taken to the alleged charge of the learned trial judge, "that the jury may take into consideration what the physicians consider as reasonably certain would be the permanent injury to the plaintiff;" but what he did charge, was that the jury "may take into consideration what the physicians have said as to the permanency of the injury," thus merely referring the jury to the testimony, and not assuming the injury to be of a permanent nature.