Cross v. Sharaffa

• Decision Date: 06 January 1933
• Citation: 183 N.E. 838,281 Mass. 329
• Parties: CROSS v. SHARAFFA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 329

183 N.E. 838

CROSS

v.SHARAFFA.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 6, 1933.

Exceptions from Superior Court, Middlesex County; Nelson P. Brown, Judge.

Action by Lawrence Cross against Eliseo Sharaffa.Verdict for plaintiff, and defendant brings exceptions.

Exceptions overruled.

P. J. Duane and J. J. Foster, both of Waltham, for plaintiff.

J. T. Connolly, of Boston, for defendant.

FIELD, J.

This is an action of tort to recover compensation for personal injuries received by the plaintiff when the bicycle which he was riding came in contact with a motor vehicle operated by the defendant.There was a verdict for the plaintiff.The case is here on the defendant's exception to that part of the judge's charge which is as follows: ‘When * * * [the plaintiff] became of age * * * he is entitled to his earnings; and, therefore, if there is any impairment of his earning capacity which extends beyond his reaching his majority, such impairment when he becomes a man, if you are satisfied of it as a matter of reasonable probability and not of speculation or conjecture, he is entitled to have you consider, if you come to the question of damages at all.’

The defendant properly does not contend that this part of the charge was incorrect as an abstract statement of law.SeeMcGreevey v. Boston Elevated Railway Co., 232 Mass. 347, 350, 122 N. E. 278.But he contends that it was based on the assumption that there was evidence before the jury sufficient to support a finding of impairment of the plaintiff's earning capacity after he should become of age, that this assumption was not justified and, consequently, that the charge was improper.SeeMcDonough v. Vozzela, 247 Mass. 552, 560, 142 N. E. 831;Gerry v. Worcester Consolidated Street Railway Co., 248 Mass. 559, 565, 143 N. E. 694.In our opinion, however, the evidence, in its aspect most favorable to the plaintiff, though meager, was sufficient to support the finding.

A finding of permanent physical disability of the plaintiff as a result of the injury was warranted.He was fourteen years old when the accident occurred.The femur of his right leg was fractured.There was no evidence that it did not heal.But there was testimony, contradicted in some respects, that at the time of the trial-which took place over two years after the accident-as a result of the injury, the plaintiff's leg was somewhat bowed, that it was three-fourths of an inch shorter than the other, that there was some interference with the muscle at the place of the fracture, and that he limped slightly.And there was testimony also that the plaintiff's leg was then practically ‘about as good as it could be after a fracture,’ that the bone would probably never be in perfect alignment, and that it would never ‘get back exactly to what it was before.’

A finding that the plaintiff's physical disability impaired his earning capacity after he should become of age also was warranted.Determination of the extent of impairment of earning capacity by reason of injury, though involving contingencies and matters of opinion, is an ordinary function of triers of fact.Here, however, no direct evidence of the extent of the impairment, measured in money, was introduced.Frequently evidence of wages, salary, or other income derived from personal services earned by a plaintiff before and after sustaining an injury is available for the purpose of comparison in proof of diminished earning power.SeeHendler v. Coffey, 278 Mass. 339, 342, 179 N. E. 801.Obviously there can be no such comparison in the present case.Yet, even in the case of an adult, such a comparison is not essential to proof-and and if shown is not necessarily conclusive-but all relevant facts are to be considered.Stynes v. Boston Elevated Railway Co., 206 Mass. 75, 77, 91 N. E. 998,30 L. R. A. (N. S.) 737,...