Rushing v. . R. R. , 149 N.C. 158 ( 1908 )

The court instructed the jury: "Whatever you (162) may allow, if you do allow damages, is the end of it. He could not sue any more if his pain and suffering were to go on. The doctor says that the injury is not permanent. The presumption is that it is ended. If you allow damages, therefore, you will not allow for any pain, or suffering, or diminished capacity for labor beyond the present. Your inquiry as to damages will not extend to the future, but shall be limited to such damages as he has sustained up to the present moment." The plaintiff's exception to this must be sustained. There was other evidence for the plaintiff that his injury was permanent. It was error to take the doctor's opinion as conclusive. It was error to hold that there was a presumption that all the injury was ended. It was also error to charge that the inquiry as to damages could not extend to the future, but should be limited to the damages sustained up to the trial.

The true rule is, that where the plaintiff has been injured by the negligent conduct of the defendant, he is entitled to recover (163) damages for past and prospective loss, resulting from the defendant's wrongful and negligent act; and this may embrace indemnity for actual expense incurred in nursing, medical attention, loss of time, loss from inability to perform mental or physical labor, and of capacity to earn money; and for actual suffering of body and mind, which are the immediate and necessary consequences of his injury. Wallace v. R. R.,104 N.C. 442; Hansley v. R. R., 115 N.C. 611; 3 Sutherland on Damages, 261 (1st Ed.); Burns v. R. R., 125 N.C. 309.

These errors affect only the issue as to damages and in no wise relate to the findings upon the other issues. In such cases, the court, in its discretion, usually grants a new trial only upon the issue as to damages. The practice is thus stated in Hall v. Hall, 131 N.C. 186 (in a case in which the issues were not as severable and distinct as an issue as to damage usually is from the issues determining liability): "It is in the power of the Superior Court to grant a new trial on one or more of several issues and to let the verdict on the other stand (Benton v. Collins,125 N.C. 90; 47 L.R.A., 33, and a list of cases there cited), but this is in the discretion of the court and not a right of the party (Nathan v. R.R., 118 N.C. 1070), and it must clearly appear that the matter involved is entirely distinct and separate from the matters involved in the other issues, and that the new trial can be had without danger of complications with other matters." When such is the condition, the almost uniform practice in this court also is, in its discretion, to restrict the new trial to the issue or issues affected by the error. See Strother v. R. R.,123 N.C. 199, and numerous cases there cited. To same effect, Gray v.Little, 126 N.C. 385; Wilkie v. R. R., 128 N.C. 114; and many other cases since.

This is especially a case in which the new trial should be limited (164) to the issue as to damages, for the defendant excepted and appealed, and on examination of his exceptions we found no error as to the other issues. We grant a new trial on the only issue brought up for review by plaintiff's appeal.

Partial new trial.

Cited: Murdock v. R. R., 159 N.C. 132; Young v. Fiber Co., ibid., 382;Ridge v. R. R., 167 N.C. 528; Lloyd v. R. R., 168 N.C. 648.