Brown v. Seaboard Air Line Railway Co.

60 S.E. 898 | N.C. | 1908

Defendant appealed. The facts are stated in the opinion of the Court. The plaintiff was conductor of a train, and seriously injured in a head-on collision between his train and another train on defendant's railway. The defendant admits its liability and states three assignments of error, relating exclusively to the issue as to damages.

1. The plaintiff, examined in his own behalf, was permitted to testify that since the collision, in addition to the bodily injury received, he suffered from extreme nervousness and "nightmares." He was (137) asked to describe the nightmares, and defendant objected. Witness said: "I had collisions and terrible happenings like that, and would have to be waked by somebody else, and sometimes would find myself jumping, and it would throw me into such a nervous condition I couldn't go to sleep for hours."

Q. "How frequently have they troubled you since last July?" A. "I suppose they would average two or three times a week."

Q. "Did you ever, previous to your trouble that occurred on the train that night, have any trouble similar to the one you have detailed to the jury since that night ?" A. "I have not." (Objection to this last question and answer sustained.)

Q. "What was the condition of your health previous to that accident?" A. "I was a sound, healthy man."

The testimony admitted by his Honor is not the declaration of the injured party, made post litem motam, offered in evidence through the medium of another witness, and generally held to be inadmissible. 3 Wigmore, 1722; Chapin v. Marlborough, 75 Mass. 244. The authorities cited by the learned counsel for defendant apply to such declarations, and not to the direct personal testimony of the injured party himself. The evidence of the physician examined tends to prove that, as a direct consequence of the blow on the head and the other physical injuries received in the "wreck," the plaintiff suffered from serious nervous derangement, called traumatic neurasthenia. It was, therefore, competent to prove by the plaintiff, as corroborative of the medical theory, the physical manifestations of such disease and how it affected him, for the purpose of establishing the nature, character, and extent of his injuries. 13 Cyc., 194.

2. The plaintiff's wife was permitted to testify as follows: "On an average of three or four times a week I have to arouse him from sleep on account of those terrible nightmares. He suffers terribly with that limb and deafness in one ear. It did not occur before the (138) accident."

Q. "Did you notice any of those troubles before the accident?" A. "No, sir; none at all."

Q. "You say he suffers from them frequently?" A. "Yes, sir."

Q. "State to his Honor and the jury what the character of those nightmares is — how they manifest themselves." (Objection by defendant overruled.) A. "He hollers out and seems to be in a stupor. Calling him doesn't arouse him at all. I have had to go to him and shake him — move him around — before he aroused from them."

The same observation applies to this assignment of error as to the first. The testimony does not consist of declarations of the plaintiff constituting in any degree a narrative of a past transaction.

It is the testimony of the wife of what she observed herself, and not what she heard her husband say, and tends strongly to corroborate the medical expert that plaintiff suffered from nervous disorder.

3. The third and last assignment of error, relating to the charge of the court, is not stated in the brief, and is, therefore, deemed to be abandoned. We have, nevertheless, examined the instructions given the jury upon the issue of damage, and find them to be a very lucid and correct exposition of the law as laid down by this Court in repeated decisions.Wallace v. R. R., 104 N.C. 449; Ruffin v. R. R., 142 N.C. 129.

No error.

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