#### The Chicago City Railway Company v. Sophia Anderson.

Opinion filed October 19, 1899

Rehearing denied December 9, 1899.

1. Pleading—when allegation is sufficient to admit proof of plaintiff’s employment. An allegation that because of the injuries received the plaintiff “was and is hindered and prevented from attending to her business and affairs,” is sufficient to admit evidence of her frequent employment as nurse and her earnings in that capacity.

2. Instructions—when instruction does not authorize improper allowance of damages for mental suffering. An instruction that in estimating the plaintiff’s damages the jury may, in connection with her personal injuries, consider her pain and suffering, if any are proved, undergone in consequence of her injuries, if any are proved, is not objectionable, as permitting the allowance of damages for mental pain and suffering endured.

3. Appeals and errors—when remittitur of half amount of verdict is properly required on appeal. A verdict for $7000, rendered in an action for personal injuries, is excessive, and is properly reduced, on appeal, to $3500, by requiring a remittitur, where the plaintiff is a woman fifty-nine years of age, who divided her time between her housework and her employment as a nurse, at which she earned $12 or $15 per week, and her injuries, except temporarily, are wholly of a subjective nature.

Chicago City Railway Co. v. Anderson, 80 Ill. App. 71, affirmed.

Appeal from the Branch Appellate Court for the First District;—heard in that court on appeal from the Superior Court of Cook county; the Hon. Philip Stein, Judge, presiding.

William J. Hynes, and Marcus Kavanagh, for appellant.

William C. Schaefer, and George W. Plummer, for appellee.

Per Curiam:

In deciding this case the Appellate Court delivered the following opinion:

“The appellee was riding as a passenger, and sat in the front end or north-east corner of one of appellant’s *299electric cars. When the car was attempting to pass a wagon loaded with lumber going in the same direction, the lumber projecting some feet—six or seven feet, as testified by one witness,—behind the end of the wagon, it ran into the lumber, some pieces of which broke throug'h and into the car and hit appellee in the back, and caused the injuries for which she sued and recovered.

“It would be useless to review the testimony in detail. There is no question made that appellee was not in the exercise of all due and proper care for ther own safety. Whether the car was negligently operated by appellant’s servants, as claimed by the appellee, or whether the collision was a mere unavoidable accident occasioned by a sudden shifting of the wagon and load from a safe position to be passed by the car, into the way of the car so suddenly and unexpectedly as to make the collision an unforeseen and unavoidable accident occasioned by an outside force beyond the control and avoidance of the appellant, and for which it was in no manner negligent or responsible, were matters which were fully placed before the jury by the evidence, and we regard their conclusion as clearly justifiable, if not absolutely right.

“Appellant argues that the allegation of the declaration that because of the injuries received appellee ‘was and is hindered and prevented from transacting and attending to her business and affairs, ’ is insufficient to admit evidence of appellee’s frequent employment as nurse to women in confinement, and her earnings in such capacity. The rule in this State is, ‘that in order to recover compensation for inability to work at the plaintiff’s ordinary and usual employment or business, all that is necessary in the declaration is the general averment of such inability caused by the injury, and consequent loss and damage, and that proof of his particular employment or business, and of his ordinary wages or earnings therein, is admissible in evidence under such general averment, but that when it is sought to recover for loss of profits *300or earnings that depend upon the performance of a special contract or engagement, then these special and particular damage,s, and the facts on which they are based, must be set out in the declaration.’ (Chicago and Erie Railroad Co. v. Meech, 163 Ill. 305.) The allegation was sufficient and the evidence properly admitted.

“Objection is made to appellee’s instruction numbered 14, because thereby the jury were told that in estimating her damages they might, in connection with her personal injuries, take into consideration her pain and suffering, if any are proven, undergone by her in consequence of her injuries, if any are proved; and the criticism indulged in is, that thereby the jury were permitted to allow damages for any mental pain and suffering suffered by her.

The mental pain that comes from the contemplation of a maimed body, and the humiliation of going through life in a crippled condition, is too remote to be considered an element of damage. The mental pain that may be considered and allowed for in this class of cases is such as is the direct result or concomitant of the physical pain suffered. Mental pain is always an attendant upon severe physical pain,—such is the relation of mind and body,-—and the mental pain that is the direct and necessary result of the physical pain, but not otherwise, is a proper element of damages in personal injury cases. (Chicago City Railway Co. v. Canevin, 72 Ill. App. 81.) The instruction violated no rule of law regarding the element of pain, either mental or physical, suffered by an injured person.

“We feel justified in omitting to discuss the numerous errors claimed concerning other instructions that were given and refused, upon the ground that they present no new or interesting questions, and, as we consider, were properly acted upon by the trial judge.

“The appellee recovered a verdict and judgment for $7000. This we believe was so excessive as to require a reversal upon that ground alone, unless a remittitur be *301entered. The appellee was fifty-nine years old. She worked about half of the time in nursing, at wages of from §12 to §15 per week, and the rest of the time her work was that of taking care of her own home, her youngest child being" seventeen and her eldest thirty-six years of age. Her injuries, except temporarily, were wholly of the subjective sort, and though we were to accept as true her present partial incapacity in consequence of them, still, if they are measured by the only standard we are permitted to employ,—that of compensation,-—she ought not to have recovered more than one-half the amount of the verdict that was returned. If appellee will file in this court, within ten days, a remittitur of one-half the recovery below, the judgment will be affirmed for the balance, at her costs, otherwise it will be reversed and the cause remanded.”

The remittitur was filed, as suggested, and the Appellate Court affirmed the judgment for §3500.

We concur in the foregoing views expressed by the Appellate Court. Accordingly the judgment of the Appellate Court is affirmed.

Judgment affirmed. -