(2) The instruction which is the basis of the second assignment of error is as follows:

"The court instructs the jury that if they believe from a preponderance of the evidence that the defendant is liable to the plaintiff in this action, then in assessing damages against the defendant, they may take into consideration the pain and suffering of the plaintiff, his mental anguish, the bodily injury sustained by him, his pecuniary loss, his loss of power and capacity for work and its effect upon his future, not however, in excess of $35,000.00, as to them may seem just and fair."

It is objected (a) that the instruction permitted a recovery in damages not only for those which proximately resulted from the injury but also for "its effects upon the future," which involved a consideration of consequences which might be essentially speculative and remote. (b) The instruction directed the jury that the damages might be in such sum not in excess of $35,000 as to them might seem just and fair. By the instruction the court called the attention of the jury to a certain sum and gave judicial approval of it, giving them to understand that they could give such sum as they might deem just and fair, without regard to the damages the evidence might prove.

The injury received is pertinent to the consideration of the instruction. In the collision of two trains defendant in error, who was a fireman, "was caught" (we quote from the opinion of the Supreme Court) "from his knee of his right leg down, between the tank on the tender and the boiler head in the cab of his engine, and remained pinned in that position for forty-five or fifty minutes before he was extricated by the efforts of his fellow workHis leg was so badly mashed and burned that it eventually had to be amputated at a point between the knee and the thigh, and it is for these injuries and his consequent sufferings that he sues to recover damages."

men.

The Supreme Court expressed the view that the speculation of future results which the railway company professed to apprehend was not left by the instruction for the jury to indulge, nor did the instruction commit the amount of damages to the conjecture of the jury independently of the evidence in the case. The contention made here was explicitly rejected, viz., that the instruction permitted the jury to take into consideration the "possible future physical effects from the injury, such as future suffering in the absence of evidence as to the probability of such."" The court remarked that it would be a strained construction of the language of the instruction "to hold that it referred to future suffering and that damages not the proximate result of the injuries received were included under" it, and that, besides, such conclusion was precluded by an instruction given at the request of the railway company, which was "that in order for the plaintiff to recover in this case he must prove by a preponderance of the evidence that the injuries he sustained were the direct and proximate result of the negligence of the defendant."

The comment of the court is accurate and we can add nothing to it. The principle is established that when the evidence in a case shows that there will be future effects from an injury an instruction which justifies an inclusion of them in an award of damages is not error. Washington & Georgetown R. R. v. Harmon, 147 U. S. 571; McDermott v. Severe, 202 U. S. 600.

It is also objected that the instruction "allowed the jury to indulge in speculation and conjecture; invited their attention to the sum of $35,000 and allowed the jury to give such sum as damages as to them might 'seem just and fair' without stating that the damages could be only such as were proved by the evidence to have proximately resulted from the negligent act complained of."

The objection is untenable. As we have seen the court

explicitly enjoined upon the jury that there must be a proximate and causal relation between the damages and the negligence of the company and the reference to the sum of $35,000 was a limitation of the amount stated in the declaration. There could have been no misunderstanding of the purpose of the instruction. Norfolk & West. R. R. v. Earnest, 229 U. S. 114, 119.

Judgment affirmed.

PACIFIC MAIL STEAMSHIP COMPANY v.
SCHMIDT.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

No. 323. Argued April 25, 26, 1916.-Decided May 22, 1916.

Where the writ of certiorari was granted to review the question of law, and evidently would not have been granted simply to reopen the inquiry into the facts, this court will assume the lower courts were right where they agreed upon the construction of the facts even though otherwise it might hesitate to do so.

This court will not assume that Congress intended to cut off an opportunity to revise doubtful questions of law and fact by imposing a penalty for reasonable delay in payment caused by an appeal based on sufficient cause.

Under § 4529, Rev. Stat., as amended December 1, 1898, a shipowner is not liable for the penalty for delay in payment of a seaman's wages during the period between judgment in the District Court and affirmance thereof by the Circuit Court of Appeals where, as in this case, there was reasonable cause for prosecuting the appeal. 214 Fed. Rep. 513, reversed.

THE facts, which involve the construction and application of Rev. Stat., § 4529, as amended by the Act of December 21, 1898, are stated in the opinion.

Argument for Respondent.

241 U. S.

Mr. William R. Harr, with whom Mr. Charles H. Bates, Mr. George A. Knight and Mr. Charles J. Heggerty were on the brief, for the petitioner.

Mr. James W. Ryan, by special leave, with whom Mr. John L. McNab was on the brief, for the respondent:

Respondent rendered services as a seaman.

The respondent was under shipping articles, because the articles were for a definite time and the respondent's duties under the articles had not been completely performed.

The vessel was bound to a foreign port, because she was bound to any part of the world and was registered for the foreign trade, and Ancon, Canal Zone, is a foreign port.

The petitioner continuously refused, without any reasonable ground for dispute, to pay respondent the wages actually earned and could have prevented the wages from continuing.

The measure of damages decreed by the Court of Appeals is that provided by § 4529, Rev. Stat., and victualling money is a part of wages.

The Court of Appeals had power to give effect to the statute by making the rate of interest on the decree of the District Court such that the interest would equal the sum which the statute provided should be recoverable by the

seaman.

The rate of interest in the admiralty is determinable at the discretion of the appellate court.

There was a manifest error of law apparent upon the face of the record in this case.

An appeal in admiralty from a District Court to the Circuit Court of Appeals opens the whole case for trial de novo in the appellate court.

The appellate jurisdiction of the Circuit Court of Appeals is the same as that of the Supreme Court from 1803 to 1875.

The appellate jurisdiction of the Circuit Court of Appeals is the same as that of the old Circuit Courts on appeals from the District Courts.

A seaman's wages continue until actually paid, notwithstanding intervening decrees of inferior courts.

The decree of the Court of Appeals should be modified so that the respondent may recover two days' pay for every day since November 4, 1915.

In support of these contentions, see The Albert Dumois, 177 U. S. 240; The Argo, 210 Fed. Rep. 872; The Blenheim, 18 Fed. Rep. 47; Caine v. Palace Shipping Co., 10 Asp. M. C., N. S., 529; Chicago Ins. Co. v. Graham, 108 Fed. Rep. 271; The Chieftan, 8 L. T. 120; City of Cleveland v. Chisholm, 90 Fed. Rep. 431; Dooley v. United States, 183 U. S. 151; Dower v. Richards, 151 U. S. 658; Downes v. Bidwell, 182 U. S. 244; The Express, 59 Fed. Rep. 476; Gilchrist v. Chicago Co., 104 Fed. Rep. 566; Re Great Eastern S. S. Co., 5 Asp. M. C., N. S., 511; Hemmenway v. Fisher, 20 How. 255; Henderson v. Kanawha Dock Co., 185 Fed. Rep. 781; The Insular Cases, in Volume 182 United States Reports; Irvine v. The Hesper, 122 U. S. 256; The Minnie, 225 Fed. Rep. 36; Munson Line v. Miramar S. S. Co., 167 Fed. Rep. 960; Nelson v. White, 83 Fed. Rep. 215; The North Star, 62 Fed. Rep. 71; The Nyack, 199 Fed. Rep. 383; Pettie v. Boston Towboat Co., 49 Fed. Rep. 464; Queen v. S. S. Michigan, 25 L. R., Q. B. D., 339; Reg. v. Lynch, 8 Asp. Rep. M. C., N. S., 363; Reid v. Fargo, 213 Fed. Rep. 771; The San Rafael, 141 Fed. Rep. 270; Schmidt v. Pacific Mail S. S. Co., 209 Fed. Rep. 264; S. C., 214 Fed. Rep. 513; The Scotland, 118 U. S. 507; The Sirius, 54 Fed. Rep. 188; The Maggie J. Smith, 123 U. S. 349; The State of California, 49 Fed. Rep. 172; The Tergeste, 9 Asp. M. C., N. S., 356; Thomson v. Hart, 28 Scot. L. R. 28; The Tokai Maru, 190 Fed. Rep. 450; The Umbria, 59 Fed. Rep. 489; Union Steamboat Co. v. Chaffin, 204 Fed. Rep. 412; The Western States, 159 Fed. Rep. 354; Seamen's Act