159 P. 974 | Or. | 1916
Lead Opinion
Opinion
For this reason the motion to dismiss the appeal is denied, and the filing of the brief is approved as of this date. Motion Denied.
Reversed and remanded March 26, 1918.
Opinion on the Merits
On the Merits.
(170 Pae. 283.)
Department 1. The plaintiff, a married woman, alleging herself to have been six months advanced in pregnancy, avers in substance that she was a passenger on one of the defendant’s street-cars and gave timely warning that she desired to get off at her usual place; that when the car arrived there it stopped and while she was in the act of alighting the defendant by its servants in charge thereof started the car suddenly whereby she was thrown with great force upon the pavement, sustaining sundry hurts; and that
“as a result of said injuries plaintiff suffered a miscarriage of the child with which she was then pregnant, thereby losing the life of said child she was then and there bearing.”
She recites various expenses which she was compelled to incur to her special damage and concludes her statement on that subject with this language:
“That by reason of said pain, nervous shock and internal injuries, general impairment of health, and the loss of her child, of which she was at the time of the infliction of said injuries pregnant, plaintiff was damaged” in a sum mentioned.
The answer denies all the allegations of the complaint except the corporate existence of the defendant
In the abstract of record there are but two assignments of error, the first of which reads thus:
“Q. (By Plaintiff’s Counsel:) Doctor, when the fetus was discharging at the time of the miscarriage when Mrs. "Wallace was in the hospital, was it possible to determine the sex of the infant?
“A. Tes, it was a male.
“Mr. Lonergan: Now, just a moment. I move to strike that out on the ground that it is incompetent, irrelevant and immaterial.
“Mr. Johnstone: It may be very material to the mother with regard to loss of service.
“The Court: Mr. Reporter, read me the question and answer.”
Question and answer read.
“The Court: It can do no harm. It may remain. The motion is denied.
“Mr. Lonergan: Save an exception, if your Honor please.
“The Court: Tes.”
The second specification of error is the refusal of the court to allow Mrs. Wright, a witness called for the defendant, to answer whether or not she was told by the plaintiff and her husband, prior to the occurrence of the accident, that they were contemplating an operation upon the plaintiff. The defendant appealed from a judgment in favor of the plaintiff as a result of a jury trial of the action. After its perfection of the appeal and the deposit in this court of the transcript, the defendant filed here a motion to set aside the judgment obtained in the action in favor of
Reversed. Remanded eor New Trial.
For appellant there was a brief over the name of Mr. Frank J. Lonergwr and Messrs. Griffith, Leiter <& Allen, with an oral argument by Mr. Lonergcm.
“in its discretion, and upon such terms as may be just,' at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.”
Conceding for the moment that the defendant was surprised by the afterward discovered perjury of the
‘ ‘ The review of the decisions shows that they are in almost- entire harmony in holding that miscarriage may be one of the effects of wrong for which recovery may be had. They also show that the effect on the mother alone is to be considered, and recovery for miscarriage allowed only so far as it is part of her personal injuries, not including any recompense for loss of anticipated offspring.”
For the error of allowing the jury to consider testimony offered as stated for the purpose of showing loss of service of the child, the judgment of the Circuit Court is reversed and the cause remanded for a new trial. Reversed. Remanded for New Trial.
Rehearing Denied.