Rogers v. Portland Ry., Light & Power Co.

134 P. 9 | Or. | 1913

Opinion by

Mr. Chief Justice McBride.

We will consider the objections urged on this appeal in the order in which they are stated in the able brief of defendant.

1. The first objection is that the court erred in admitting evidence that plaintiff was suffering from traumatic neurasthenia, for the reason that the complaint did not allege the existence of such a condition. Translated from the jargon of the medical profession into plain English, the term “traumatic neurasthenia” means a condition of nervous prostration or debility resulting from a wound or blow; and we think this condition is sufficiently pleaded when the plaintiff sets up that, by reason of the negligent acts of defendant, “her nervous system is permanently shattered.” The pleader translated the term into pure English in the complaint, and the surgeons retranslated it into Greek; but the condition is sufficiently alleged.

2. The second objection is to the hypothetical question propounded to the medical witnesses; the ground of objection being that the question included conditions not shown to exist by the evidence previously offered. We have carefully compared the alleged facts and conditions stated in the hypothetical question with the testimony and find that with one trifling exception, which was immaterial and could not possibly have affected the answer given, there is some evidence tending to support the facts stated in the hypothesis submitted. The objection was general, and we are of the opinion that in an objection to a hypothetical question involving several distinct propositions or conditions, an objection that one of such conditions is not supported by testimony previously introduced should be specific so that the attention of the court and counsel can be called to the exact defect, with a view of reframing the question, so as to obviate the objection. This would seem to be only fair to the court and to counsel; but, in any event, the question asked in the case at bar did not substantially vary from the testimony previously admitted.

The third objection is that the court erred in not taking the evidence of traumatic neurasthenia from the jury; and the fourth objection is to the instruction of the court submitting that condition for its consideration, holding, as we do, that traumatic neurasthenia is sufficiently pleaded. These objections cannot be sustained. The fifth objection goes to the same proposition.

3. The last contention is the refusal of the court to give certain instructions as to contributory negligence on the part of plaintiff. The instructions are too long to be included in this opinion, and we summarize them from the brief of defendant: “These instructions were, in substance, that if the plaintiff saw, or could by the exercise of ordinary care have seen, the cars approaching and failed to warn the driver and made no objection when he drove upon the track in front of the car, she was guilty of negligence. Also that if the plaintiff saw the street-car of the defendant approaching, notified the driver of the automobile of that fact, and then, after so doing, permitted him to go upon the track in front of the approaching car without remonstrating with him, or requesting him to stop or turn aside, she was guilty of negligence. Also that if the plaintiff saw the street-car approaching and notified the driver, and after so doing the attention of the driver was attracted by a car approaching on another track which the automobile was about to cross, and that, by reason of preoecnpation of mind on tbe part of tbe driver or on account of bis attention being attracted to tbe other car, be failed to see tbe one which struck tbe automobile, and that if tbe plaintiff knew of tbe proximity of tbe car which struck tbe machine and failed to again warn tbe driver of tbe automobile, but suffered him to go upon tbe track in front of tbe car, she was guilty of negligence. Also that if tbe plaintiff, while seated in tbe automobile, was talking with tbe driver and was carelessly and negligently paying no care or attention to tbe manner in which tbe same was being driven by tbe driver, and” that by reason of tbe conduct of tbe plaintiff tbe attention of tbe driver was attracted so that be did not look or listen or use ordinary care in driving tbe automobile, tbe plaintiff was guilty of negligence. ’ ’

There was absolutely nothing in tbe testimony to justify any instruction as to plaintiff’s contributory negligence. She bad no control or authority over tbe driver, but was merely a guest, and, as any woman under tbe same circumstances would have done, she relied upon her escort to look out for her safety. She was not charged with tbe duty of looking out for possible dangers. If a possible danger was called to her attention, and she realized it, it was her duty to call tbe attention of her escort to it; and this she did. When she saw a car coming she called bis attention to it. Had she assumed tbe task of looking out for cars, tbe case might have been different; but such duty bad not been committed to her, and she had not assumed it. There is nothing to indicate that she acted differently from any other woman under tbe same circumstances, and tbe instructions given by tbe court were quite as favorable to tbe defendant as the law warranted.

We find no error in the record and the judgment is affirmed. Affirmed.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Bamsey concur.