Clukey v. Seattle Electric Co.

27 Wash. 70 | Wash. | 1901

The opinion of the court was delivered by

Dunbar, J.

Action for damages for personal injuries sustained by a passenger on a street car owned and operated by appellant. Judgment was asked for $15,000, and the jury returned a verdict of $5,700. Motion for new trial was overruled, judgment entered, and appeal taken.

Appellant’s first assignment of error is the admission by the court of testimony showing the pregnancy of the plaintiff, Mrs. Olukey, and the abortion alleged to have been suffered by her following the accident, and the suffering and injury incident thereto; it being contended that such damage, if any, was a special damage, and therefore that it should have been specially alleged. Without entering into a discussion of the fine distinctions which are sometimes drawn between special and general damages, and accepting the statements of the law cited by appellant from the 8 Am. & Eng. Enc. Law, 542, that general damages are those which necessarily and by implication of the law result from the act or default complained of, and from the 16 Enc. Pl. & Pr., p 381, to the effect that it is well settled that, under a general allegation of damages consequent upon an injury to the person, a recovery may be had for all damages naturally and necessarily sustained by reason of the injury charged, and which are the direct and obvious results thereof, since such damages are implied by law, we still think the testimony was admissible under the allegations of the complaint. It is impracticable to furnish a specific catalogue of the plaintiff’s condition at the time of the accident, or to state all the successive steps resulting from an accident which culminated in the final injury sustained, or to state all the reasons for results arising from the peculiar conditions or surroundings of the plaintiff. It is competent, in aid of an intelligent tracing of cause and effect, to show, in the absence of such allegation, that the plaintiff was a very large and fleshy woman, where that fact tends to explain the reason for certain injuries claimed to have been received; or that she was an old woman, or a nervous woman, for the purpose of showing that the injury was aggravated by reason of those personal peculiarities. Some latitude must be allowed to the pleader in this respect. After the allegation of certain injuries, it is alleged in the complaint that she (the plaintiff) received other injuries, internal and of a permanent nature; that she was hurt and injured in and about the breast, waist, and abdomen, and that she had unnatural internal bleeding. Certainly a miscarriage would naturally result from the state of facts alleged. The supreme court of the United States, in Wade v. Leroy, 20 How. 34, approved the admission of testimony tending to show incapacity on the part of the plaintiff, by reason of tbe injury received, to attend to the particular business in which he was engaged before the injury was sustained, although the nature of his occupation was not set forth in the declaration, and announced therein the following rule:

“If the evidence tends to support any issue between the parties, or has a direct connection with other evidence competent to maintain the averments of the declaration,— either to illustrate its meaning or to ascertain its probative effect,- — it cannot be rejected as impertinent, or as founded upon matter that does not appear in the pleadings of the cause.”

The admission of the testimony complained of in this case was nothing more than permitting the plaintiff to show the resulting injuries from the accident, flowing naturally and proximately therefrom. As sustaining the court in the admission of the testimony complained of, see Missouri Pacific Ry. Co. v. Mitchell, 72 Tex. 171 (10 S. W. 411); Tobin v. Fairport, 12 N. Y. Supp. 224; Parker v. Ottumwa (Iowa), 85 N. W. 805 ; Denver & Rio Grande Ry. v. Harris, 122 U. S. 597 (7 Sup. Ct. 1286) ; Manley v. Delaware & H. Canal Co.; 69 Vt. 101 (37 Atl. 279); Ohio & M. Ry. Co. v. Hecht, 115 Ind. 443 (17 E. E. 297. And many other cases might be cited sustaining the same principle. It will be observed that the complaint alleges that plaintiff received other internal injuries, and that the defendant went to trial without ashing that the complaint be made more definite and certain, or attacking it in any way. Ender such circumstances, the testimony was plainly admissible.

The second assignment of error goes to the sustaining by the court of an objection to the following questions propounded by appellant’s attorney to Mr. Clukey, the husband of the injured plaintiff: “Mr. Clukey, were you present -when Dr. Coe examined your wife ?” Answer: “Yes, sir.” Question: “Now, Mr. Clukey, when Dr. Coe was present and examining her, is it not true that neither you nor Mrs. Clukey made any mention that there had been a miscarriage ?” This question was certainly not admissible as proper cross-examination, and the fact that the witness was one of the plaintiffs in the case does not change the rule as to him. Appellant does not contend that it was for the purpose of laying the foundation for an impeachment, even if it had been competent for that purpose; hut the contention is that, if true, it fixed the intent of the parties, — being a circumstance against interest. Such testimony might have been introduced as a part of the defendant’s case, but we tiink it was plainly inadmissible upon cross-examination.

We will notice the third assignment hereafter. What we have said in relation to the first assignment may appropriately be applied to the fourth. The hypothetical questions objected to under assignment Yo. 5, while probably rather awkwardly constructed, we are satisfied were absolutely harmless, and violated no rule of law. The sixth assignment embraced an objection to the manner in which the attorney for respondents conducted the cross-examination of the medical experts appointed by the court. The counsel asked the expert if such authorities did not lay down certain rules, — reading the language of the rule from the author’s work, — and it is contended that it is an infraction of the rule of evidence against the admission of medical authorities. But we do not think the rule of law was announced to meet the practice of the kind complained of. These questions were propounded upon cross-examination for the purpose of testing the knowledge of the expert. It would have been competent for the attorney to have stated supposititious cases to the experts. He could properly have stated the rule from memory, asking the expert if such an author did not lay down such a rule. It seems there could he no tenable objection to his reading the rule to the expert. In fact, it is a more exact method and less liable to make a wrong impression on the mind of the juror, than to cross-examine from memory.

As to the seventh assignment of error, it cannot be said, we think, that the alleged misconduct of counsel for the respondent in using the language which he did in his address to the jury will warrant a reversal of the cause. He had a right, of course, to tell the jury that they should give him a verdict for the full amount asked for in the complaint. Further remarks were objected to by counsel for defendant, when the court said, “The jury in this case will regulate their deliberations upon the evidence in this case, which this jury always does and it is insisted that the remark of the court, instead of being a rebuke to counsel for plaintiff, was rather a rebuke to counsel for defendant for interfering. We are inclined to think that the concluding clause of the court’s remark was not justified. At the same time, the jury were, in effect, told, and must have understood from the court, that a discussion of extrinsic matters was to be excluded from their deliberations. Under all the circumstances of the case we do not feel justified in sustaining this assignment of error. State v. Boyce, 24 Wash. 514 (64 Pac. 719) ; Taylor v. Ballard, 24 Wash. 191 (64 Pac. 143).

The following instruction is objected to in the ninth assignment:

“The general rule of law regarding the duty which railroad companies of this kind owe to their passengers may be stated in this way: Common carriers, in the operation and running of their ears, and especially common carriers such as this, owe the duty to passengers whom they carry to use the highest degree of skill, care, and prudence in the running and in the operating of those cars, so as to- prevent injuries to those passengers.”

It is insisted that the last portion of this instruction, makes the defendant an insurer. But we think this is a strained construction of the instruction given, and that the expression “so as to prevent injuries to those passengers” neither adds to nor takes anything from the instruction which precedes it, and is entirely harmless.

The ninth assignment is disposed of hy what we have said in relation to- the first.

It is stated in the, third assignment that the complaint seeks to recover $150 expenses incurred for physicians’ services and medicines, rendered and to he rendered, and that the testimony of one Dr. O’Bourke, who was plaintifE’s physician, that his services were worth $200, and of Dr. Downey, the other of plaintifE’s physicians, that his hill for services was $125, taken in connection with the instruction of the court that plaintiffs might recover whatever expenses in the way of physicians’ services or medicines may have been proven to have been paid for, or for which a liability has been incurred, would justify the jury in incorporating in their judgment the amount of $325, instead of $150, the amount claimed in the complaint. We are not certain that the jury were misled in this respect hy the instructions of the court, hut as it does not affirmatively appear that they were not, the plaintiffs, in accordance with the offer heretofore made, will remit $175 from the judgment obtained.

The judgment will therefore he affirmed, less the amount of $175; the respondents to recover costs.

Reavis, C. J., and Anders, Mount, White, Pullerton and Haddey, JJ., concur.