131 P. 310 | Or. | 1913
delivered the opinion of the court.
It is disclosed by the testimony that about six years prior to the accident upon which this action is based the plaintiff underwent an operation designed to adjust her womb, which had become displaced oh account of troubles experienced at childbirth. To effect the rectification of that organ, it was necessary to make an incision about the median line of the abdomen just above the pubic bone. The cut was sewed up, and healed successfully, giving no trouble to the plaintiff until after the accident complained of. The principal injury described in the testimony was the hernia already mentioned, which came through the inner fasciae of the abdomen, and made its external appearance under the skin at the cicatrix resulting from the wound of operation. One element of plaintiff’s claim against the defendant was for permanent injury. It is contended by the defendant that,
“It is alleged in plaintiff’s complaint that by reason of this accident she has been permanently injured and disabled in various parts of her body and person. In this connection I instruct you that, before you would be warranted in allowing the plaintiff any damages for any alleged injuries to her person, you must be satisfied from a preponderance of the evidence not only that the plaintiff is injured in the respects charged, but also that the injuries claimed by her resulted from and were caused by this accident.”
“It is alleged in plaintiff’s complaint that she has been permanently injured by reason of this accident. In this connection I instruct you that, if you should come to the question of damages, you cannot allow the plaintiff any sum by way of compensation for any alleged permanent injury, unless you are reasonably certain from a preponderance of the evidence that she has sustained permanent injury and disability. It is not enough that you may believe from the evidence that a permanent injury is possible.”
“It is alleged in plaintiff’s complaint that she has been permanently injured by reason of this accident, but I instruct you that the evidence fails to show that she has sustained any permanent injury, and I therefore instruct you that, if you come to the question of damages, you cannot allow any sum by way of compensation for permanent injury.”
“Now the burden of establishing all these things that the plaintiff has alleged in her complaint is upon her, and she must so establish them to your satisfaction by a preponderance or outweighing of the testimony—that is, she must prove by a preponderance of the testimony all of the material things she alleges in her complaint, namely, the way the accident occurred, the way the injury came to her and the amount of damage she has sustained thereby—all of these things are solely for your determination and you alone.”
After likening the estimation of the effect of testimony to the weighing of the same upon scales, he said:
“So, then, as to the allegations in the complaint here, the material ones of which I have spoken, if the scales preponderate the plaintiff’s way even though slight, she has established by a preponderance of the evidence the things which she has alleged, and is entitled to a recovery. If she has not, then the defendant is entitled to a verdict in this case.”
Taken in connection with his recitation of the pleadings, these utterances of the judge state fairly the conditions upon which alone the plaintiff can recover, together with the alternative that she must fail if she does not meet those conditions.
“I instruct you that, if you should come to the question of damages, you can only allow the plaintiff compensation for such injury as you believe from a preponderance of the evidence she has sustained by reason of this accident, and, if you find and believe from the evidence that the accident merely aggravated or rendered worse plaintiff’s former injuries as a result of certain operations performed upon her prior to the accident, then you cannot allow the plaintiff any sum by way of compensation for any aggravation of her previous condition, for the reason that it is not alleged in plaintiff’s complaint that any former infirmity has been aggravated or rendered worse by reason of this accident.”
In support of this instruction the defendant cites Maynard v. Oregon R. R. Co., 46 Or. 15 (78 Pac. 983: 68 L. R. A. 477), holding, in effect, that in an action for personal injuries plaintiff cannot recover for a mere aggravation of a previously received injury without alleging such aggravation in the complaint. With the doctrine of that decision when applied to a proper case we have no dispute. We may concede that the wound of operation made by the surgeon was such an injury which if it was in existence at the time of the street car accident complained of might be aggravated by that casualty, but there is no evidence that the trauma of the surgeon’s knife persisted to the time of the accident. All the evidence was that the healing process of nature had put
If, notwithstanding the surgical incision had healed, and had given no trouble for six years, it is to be taken into account as an abiding injury of which the plaintiff’s fall from the car was an aggravation, so as to exclude her present hurt from our consideration because not pleaded as such aggravation instead of an original damage, then by a parity of reasoning, we must consider the present hernia a permanent injury, although it possibly might be cured by a surgical operation. In other words, if successful surgery will not in fact obliterate an injury in one case, we cannot hold as a matter of law that a possibly successful operation would destroy its permanency in another case.
The judgment of the circuit court is affirmed.
Affirmed.