CUNNINGHAM: tI. NEW YORK'CENT.

&;

H. R. R. 00.

439

CUNNINGHAM: 1l. NEW YORK .GENT.

& H. R. R. Co.

(OirouU Oourt. B. D. New Yark. .February 10, 18112.)
DAMAGES-OPINION EVIDENOE-}l'uTURE El!'l!'ECT QJ' INIURIBS.

In an action to recover damages for personal injuries, the opinions of medioal experts a.s to the permanence and probable future effect of those injuries m.ay be received. .

At Law. Action by Edward H. Cunningham against the New York C,entral & Hudson River Railroad Company to recover damages for personal injuries. There was'a verdict for plaintiff, and defendant moves for a.new trial. Motion Qve.rruled. Dani& Nason, for plaintiff.

A'U8tim G.

WHEEJ,ER, District Judge. The plaintiff got a verdict for injuries to his person while 8; passenger on one of the defendant's freight trains. The principal questions saved at the trial, and relied upon now,relate to the· testimony of expert physicians who attended upon him, and have since examined him, as to the permanency and probable futureefl'ects of the injuries, and to· his right to recover damages for what these effects are likely to be. "The opinions of medical men are constantly admitted as to the cause of disease or of" death, or the consequences of wounds,and as to the sane or insane state of a person's mind as collected from a number of circumstances, and as to other subjects of professional skill." 1 Greenl.Ev.§. 440. Theqllestions objected to -Were allowed bec/mse thought to be within this rule, and' they are still thought to be so. The principal objection to answers allowed to stand is that they were not posi. tive, but more or less conjectural. They could not, however, from the nature of tbesubject, be absolutely positive, but, being as to opinion, must be more or less uncertain. Their weight, according to their positiveness, with other respects, was for the jury, and was left to the jury. Fetter v. Real, 1 Ld. Raym. 339,692, I.Salk.H, 12 Mod. 542, was for the coming out of part ofthe plaintiff's skull in consequence of a battery, after recovery for .the battery; and, on demurrer to a plea of the former recovery, Lord HOLT, O. J., said: II If this matter had been given in evidence as that which in probability might have been the consequence of the battery, the plaintiff would have recovered damages for it;" and the demurrer was sustained. This case is not shown nor seen to have been overruled or questioned, but seems to have been approved, and to be correct in principle. Sedg. Dam. 104; Whitney v. Olarendon, 18 Vt. 252; F'lilRome v. Ckmcord, 46 Vt. 135; Stutz v. Railway CO., 73 Wis. 147, 40N. W. Rep. 653; TreadtOeU v. Whittier, 80 Cal. 575, 22 Pac. Rep. 266. The ruling on this sub· jeot seems to ,be within this principle. Another point suggested now, as to expenses of treatment and of joumey home, does not appear to have been saved at the trial, perhaps because not of much importance, and it could bavebtlen belpedby amendment. Motion for new trial over· ruled. '

440

FEDERAL REPORTER, vol. 49.

ST. LoUIS &: S. F.Ry. CO.

tI.

O'LOUGHLIN.

(Ctrou1t Court oJ Appeals, Ef,ghth CfJrcu1.t. February 15, 1892.)

1.

In atl action for the killing of a mule, struok by a locomotive on the'prairie In broad daylight, three passengers on the train testified that they saw a bunoh of mules ahead of the train; that they ran a oonsiderable distance afong the traok; that the train was running at a good speed, and was not slowed up until it ran into and scattered the mules; and t\J,at it seemed as if the engineer were trying to run theIll'down. Defendant failed to oall the engineer as a witness, or to offer any'evideIlce on, this issue. Hetd harmless error to oharge that the engineer was bound . . toQ,se: the "utmost" oare; as it was evident that no Qare whatever was exercised. 2. INDIAN TBRRITORy-LIMITATIONS-MISSOURI STATUTES. The statutes of the territory of Missouri,inoluding the statute of limitations, ceased to operate in the region now composing the Indian Territory when that region ceased to be a part of Missouri, and there was no statute of linl.itations in force in the Indian Territory from that time until May""1a, 1890, when oongress extended over it the statute of Arkansas.

RAn.ROAl) CoHPA.NIES-KtLLING. STOOK-INSTRUCTION-HARMLESS RRRoR.

In the United States Court in the Indian Territory. Action by' John O'Loughlin against the St. Louis & San Francisco Railwa.yCompany to recover for the killing of a. mule. Verdict and judgment for plaintiff. Defendant brings error. Affirmed. E. D.Kenna and L. F.Parker. for plaintiff in error. S. B. Dat0e8 and W. P. Thnmpson, for defendant in error. Before CALDWELL, Circuit Judge, and SHIR.\S and THAYER, District Judges. ', CALDWELL, Circuit Judge. This action was commencedin the United States court in the Indian ,Territory byO'Loughlin against the railway company, to. recover darilages for a mule alleged to have been killed by the negligence of the company. The defense was a general denial, and a plea of the statute of limitations of three years. The. plaintiff recovered judgment below for $241.65, and the company sued out this writ of error. The first error assigned is that there is no evidence of negligence. There is in the record the testimony of three witnesses, who were passengers on the passenger train which struck and injured the plaintiff's mule, and from, which injuries it soon thereafter died. One of these witnesses testifies that "the train was running at about its usual rate of speed. There was a.bunch of mules on the prairie in front of the train, and the engineer seemed to be trying to run them down; for we were going over a rough road, and running at a good speed, as fast or faster than its usual speed on good road. There was a slough on one side of the track, and some mud holes on the other side. I saw the bunch of mules ob the prairie, near the track,' in front of the train. When the train run into the bunch, they scattered." The second witness testified that he "was looking out the window, and saw a bunch of mules, four or six in numl>er; on the prairie, near the railroad, in front of the train. They started off in a run down the track, and it looked like the' engineer. was trying to run them down. The train run into the bunch. * * * I then