161 Wis. 517 | Wis. | 1915
Tbe question involved on tbe demurrer is whether it appears from the first cause of action that sufficient time elapsed between tbe injury and death to form a basis for damages, or whether tbe death was instantaneous. Tbe cause of action demurred to alleges that the fire originated on tbe first floor of tbe building, spread to the second, then to the third floor where deceased was working; that there were no fire-escapes, and that a few minutes after deceased was caught
It is argued that the allegation to the effect that “a few minutes after he was caught by the said flames and exposed to the^ said burning, he then and there died from the effect of the flames and the burns which he received from them,” is not sufficient basis for damages for pain and suffering between injury and death.
It is the settled law of this state that if there be a substantial period of suffering between injury and death there may be a recovery of damages for such pain and suffering in a proper case. Brown v. C. & N. W. R. Co. 102 Wis. 137, 77 N. W. 748, 78 N. W. 771; Johnson v. Eau Claire, 149 Wis. 194, 135 N. W. 481; Moyer v. Oshkosh, 151 Wis. 586, 139 N. W. 378.
We think the allegations of the complaint in the instant case are sufficient to admit evidence that a substantial period of suffering existed between injury and death. On demurrer admitting all the allegations of the complaint well pleaded, every reasonable intendment must be made in favor of the pleading. Downer v. Tubbs, 152 Wis. 177, 139 N. W. 820; Pulp W. Co. v. Green Bay P. & F. Co. 157 Wis. 604, 147 N. W. 1058; Laun v. Kipp, 155 Wis. 347, 145 N. W. 183.
Upon the allegations of the complaint the deceased died “a few minutes” after he was caught by the flames and exposed to the burning. “Few” is a relative term and of great elasticity of meaning. Anderson v. Williams (Pa.) 44 Wkly. Notes Cas. 418; 3 Words & Phrases, 2753.
In Indianapolis St. R. Co. v. Bobinson, 157 Ind. 414, 61 N. E. 936, it was held that the term “few,” when applied to travel on a street railroad, might mean fifty persons or five hundred.
“The complaint demurred to, by sufficient allegations, shows that plaintiffs intestate was injured by actionable negligence of the defendant, and that he lived thereafter some period of time. The length of time he survived the injury is not stated and is not material except as to the damages recoverable, and that does not go to the cause of action.”
See, also, the following cases: Bancroft v. B. & W. R. Corp. 11 Allen, 34; Hollenbeck v. Berkshire R. Co. 9 Cush. 478; Tully v. Fitchburg R. Co. 134 Mass. 499; Chandler v. N. Y., N. H. & H. R. Co. 159 Mass. 589, 35 N. E. 89; Corcoran v. B. & A. R. Co. 133 Mass. 507; Kellow v. C. I. R. Co. 68 Iowa, 470, 23 U. W. 740, 27 U. W. 466.
We think the plaintiff has sufficiently alleged that there was a substantial period of suffering between the injury and death, hence a good cause of action is stated.
By the Court. — The order appealed from is affirmed.