136 Mich. 432 | Mich. | 1904
The defendant’s motorman lost control of the car he was in charge of, upon a grade on Washington avenue, in the city of Lansing. At the foot of the grade was a switch, and just beyond the switch the track turned upon Franklin avenue, which is intersected by Washington avenue at that point. It was customary for cars to meet and pass at the switch, and, as the uncontrolled car passed over or beyond the switch, the other car was visible, approaching on Franklin avenue a few hundred feet distant, and Was seen by the plaintiff across the corner. In her alarm she arose and started for the door, and either went upon the platform and jumped from or was thrown from it, or, as her counsel claim, stood at the door and was thrown from the car as it turned the sharp curve in the road at the corner. The car proceeded until it collided with the other car. That she suffered a serious injury is not denied, but counsel for the defense allege that it was due to her own want of care, which is claimed to have amounted to contributory negligence. The negligence charged was: (1) Allowing the car to be' out of repair, whereby the brake was ineffective; (2) putting the car in charge of an incompetent motorman; (3) negligence of the motorman in managing the car.
The defendant owed to its passengers a high degree of diligence and care in transporting them, and that involved the character of the rolling stock. It is not to be expected that a passenger can easily prove the exact particular in which the locomotive which draws his train is defective, or where the bridge which gives way with the train was weak, or the exact particular in which the company is wanting in diligence to prevent or avert a catastrophe. Therefore, in such cases, the circumstances of the accident may sometimes justify an inference of negligence. This was a question which it was proper for the court to leave to the jury, under the circumstances shown.
The same may be said of the competency and conduct of -the motorman. There was testimony tending to show that the motorman did not know that he could stop the •car by reversing the motor; that his tutelage had been brief; and, although there was proof showing the opposite, the question was one for the jury. Again, there was testimony tending to show that he did not turn off the current, and that he lost his judgment and did not know what to do in the emergency. The passenger is entitled to reasonable protection against all of these dangers, and it is not necessarily a defense that the motorman was con
Counsel contend that the conclusion is irresistible that plaintiff was not thrown from the car as alleged, but must have jumped from the car when in motion, and insist that there was therefore a failure to prove the case as alleged, and also that contributory negligence was proved. They say, further, that, at all events, that question should have been left to the jury. We are not aware that any one testified to seeing the plaintiff jump from the car. Miss Hazelton testifies that, as the car swung rapidly around the corner, its centrifugal force threw her against some one, while the evidence is strong that it was at this point that the plaintiff was thrown from or left the car, being-thrown some 18 or 20 feet, as were several other passengers who jumped from the car. There was no occasion to submit the question of her jumping from the car, as there is no evidence showing it. We think the undisputed evidence shows that it would not have been contributory negligence had she jumped, under the danger and excitement of the occasion, but the contention is made that in such case she could not properly have recovered, by reason of a variance, her declaration alleging that she was thrown from the car. The plaintiff testified that she knew that she did not jump; that she stood at the door looking towards the west, holding onto some irons with both hands; that she was thrown off. There is nothing so inconsistent in the idea that the centrifugal force should have broken her hold and thrown her from the car as to justify the jury in finding that she jumped off, without other evidence, and the court was not called upon to instruct them to consider that theory. Even if counsel are right in contending that she was upon the platform, and? not in the door, it does not follow that she jumped off, or
The plaintiff was a married woman, and no damages were claimed by reason of a loss of earnings or earning •capacity. The damages were limited to pain and suffering, past and prospective. The claim was made that her injury was permanent, and damages were asked covering the period of her life. We are of the opinion that it was •proper to leave the question of permanent injury to the jury, under the testimony given. Dr. Thoms testified that it was his opinion that the injury would not be entirely recovered from. It was an injury to the brain, and her •condition up to the time of the trial was shown. The court instructed the jury that, “if the plaintiff will never recover from them, then they are permanent, and she is to be awarded, if she recovers, damages, not only for the pain and suffering she has experienced up to this time, but such damages for pain and suffering and disability as you may be convinced from the evidence she will experience in the future as a result of such injuries;” and we think this implied that a finding of “reasonable certainty •of permanence” was essential.
Counsel introduced the mortality tables, for the purpose •of proving plaintiff’s expectancy of life. It was his theory that her prospective pain and suffering should be compensated for. It is to be supposed that her pain and suffering up to the time of trial were included. It was also proper to include damages for prospective suffering for such time as the jury should find that she would suffer them, but not beyond her expectancy of life, and this means her expectancy at the time of the trial. Counsel contend that the jury were permitted to allow damages on the basis of the expectancy before she was injured. If so, this was manifestly wrong. See Olivier v. Railway Co., 134 Mich. 367 (96 N. W. 434). A man who must contemplate death may be supposed to have more intense mental suffering than others, and may recover accordingly.
“The plaintiff may not live for any particular period,, and you should consider the contingencies of sickness, and you should make a reasonable deduction for such contingency, and for others, if any, that the evidence may disclose might lessen her reasonable prospect of living for the period mentioned in the table of mortality. * * *
“She should receive the present worth of such future damages. It is at your discretion to give such an amount as you may think right for mental suffering and physical, pain and suffering endured by the plaintiff up to this time and from this time forward, and for such pain and suffering as you are satisfied from the evidence in the case that, she may experience in the future.”
Again, in response to a question from a juror, he .said:
“A Juror: The question we want to ask is, What is the expectancy of this woman’s life from this date on ?
‘ ‘ The Court: In this State, gentlemen, we have what is known as a ‘ table ’— Of course, it does not apply to any one in particular, but it is a table of expectancy that we use in the trial of lawsuits. By the table a person in good health at the age of 25 may reasonably expect to live for 38 years to come. That table is not final. This case, of course, you will decide having in mind what the evidence discloses regarding the plaintiff’s health previous to the accident, and, of course, that table will be something of a guide to you, but you will decide the case, of course, from the evidence regarding her health especially previous to the accident. If she was a person of fairly good health at that time, then it is reasonable to suppose that she may have expected to live 38 years; but, as I said in my charge, you must take into consideration the possibility of sickness, that she may not live any considerable length of time, but reach such a conclusion from all the-evidence in the case as appears reasonable to you.”
The judgment is reversed, and a new trial ordered.