Washington, Alexandria, & Mt. Vernon Railway Co. v. Lukens
32 App. D.C. 442
D.C. Cir.
1909
Check Treatment
Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. We are of the opinion that the second count of the declaration states a good cause of action. It sets out the relation of carrier and passenger; the duty of the defendant arising out of that relation; the negligent performance of that duty; and alleges that the exposure of the plaintiff to the cold and the contraction of disease were the consequence of the defendant’s negligence. The action is not for the breach of the contract of carriage, but for the wrong done through the failure of the defendant to perform its duty. The declaration is in tort, and not on contract; and the sufficiency of its allegations is determinable by the law relating to torts. Chesapeake & O. R. Co. v. Patton, 23 App. D. C. 113, 121; Lindsey v. Pennsylvania R. Co. 26 App. D. C. 503, 507, 3 L.R.A.(N.S.) 218, 6 A. & E. Ann. Cas. 862; Brown v. Chicago, M. & St. P. R. Co. 54 Wis. 342, 354, 41 Am. Rep. 41, 11 N. W. 356, 911; International & G. N. R. Co. v. Terry, 62 Tex. 380, 383, 50 Am. Rep. 529.

2. Evidence having been introduced tending to prove the allegations of the declaration, its credibility and weight to establish the fact that the inuries received were the probable and direct result of the act of negligence were for the determination *453of the jury under a charge correctly defining the principles of law applicable to the case made hy the evidence. It was not error, therefore, to refuse the request for a direction to find a verdict for the defendant. As the controlling question of law invoived are more directly presented by the errors assigned on the refusal of the other special instructions requested by the defendant, they will be discussed more at length thereunder.

3. The fourth instruction was rightly refused. As before said, the action is in tort for the wrong one, by the negligent performance of a duty, imposed by the relations of the parties. The question for the jury to determine was whether the accident to the car was the proximate cause of the plaintiff’s illness, and not whether the injury was one that, in the language of the instruction prayed, “might and ought to have been foreseen and anticipated by an ordinarily reasonable and prudent man as reasonably likely to flow from the act.” Baltimore City Pass. R. Co. v. Kemp, 61 Md. 14, 81. In that case there was evidence tending to show that cancer resulted from a blow received by a female passenger upon her breast through the negligence of the defendant, and the question was whether this could be considered by the jury as a natural and direct result of the injury. In discussing the question involved, Chief Justice Alvey, after-wards Chief Justice of this court, used the following language: “The general rule is that, in actions of tort like the present, the wrongdoer is liable for all the direct injury resulting from his wrongful act, and that, too, although the extent or special nature of the resulting injury could not, with certainty, have been foreseen or contemplated as the prohable result of the act done. * * * That the female plaintiff may have had a tendency or predisposition to cancer can afford no proper ground of objection. She, in common with all other people of the community, had a right to travel or be carried in the cars of the defendant, and she had a right to enjoy that privilege without incurring the peril of receiving a wrongful injury that might result in inflaming and developing the dormant germs of a fatal disease. It is not for the defendants to say that, because they did not, or could not, in fact, anticipate such a result of their *454negligent act, they must therefore be exonerated from liability for such consequences as ensued. They must be taken to know and to contemplate all the natural and proximate consequences, not only that certainly would, hut that probably might, flow from their wrongful act. The defendants must be supposed to know that it was the right of all classes and conditions of people, whether diseased or otherwise, to he carried in their cars; and it must also be supposed that they knew that a personal injury inflicted upon anyone with predisposition or tendency to cancer might, and probably would, develop the disease.”

The doctrine of that case has been adopted by this court. Guenther v. Metropolitan R. Co. 23 App. D. C. 493, 517. See also Sloane v. Southern California R. Co. 111-Cal. 668, 683, 32 L.R.A. 193, 44 Pac. 320; Montgomery & E. R. Co. v. Mallette, 92 Ala. 209, 216, 9 So. 363. In accordance with the doctrine stated, the defendant became liable for all of the direct, natural consequences of its negligence that would not only certainly result, but also for such as might probably result, from the wrongful act, without regard to its reasonable anticipation of such consequences.

4: Prom what has been said under the preceding assignment of error, it follows that the court did not error in striking the word “unexpected” from the ninth instruction before giving it to the jury. As modified, it reads: “The jury are instructed that the defendant is liable for the natural, proximate, and probable consequences of its act, neglect, or default; and that it is not liable for any indirect or remote consequences resulting therefrom.”

This stated clearly the question of fact that the jury was called upon to determine. Without reviewing the many cases bearing on the vexed question of proximate and remote cause, we content ourselves with referring to the following cases which hold that what is the proximate cause of an injury or loss in actions of this kind is ordinarily a question for the jury: Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 474, 476, 24 L. ed. 256, 258, 259; Guenther v. Metropolitan R. Co. 23 App. D. C. 503, 510; Schumaker v. St. Paul & D. R. Co. 46 Minn. *45539, 43, 12 L.R.A. 257, 48 N. W. 559. The facts of this present case bring it within that rule. See also Lindsey v. Pennsylvania R. Co. 26 App. D. C. 503, 3 L.R.A.(N.S.) 218, 6 A. & E. Ann. Cas. 862. In that case, the plaintiff, whose relation to the defendant was that of a passenger, was compelled to ride in an unheated car, during very cold weather, and thereby contracted a severe cold that was followed by pneumonia. There was no physical injury to the plaintiff from the negligent operation of the train, and the sole act of negligence was the failure to heat the car. It was left to the jury to say whether the illness of the plaintiff was the probable and proximate consequence of that neglect. We see no substantial difference between being compelled to ride in an unheated car that was otherwise safely carried, and being compelled, by reason of injury to the car, to leave the same and stand for an unreasonable length of time on damp ground in cold weather. A cold might probably result from either exposure, and run into pneumonia or other disease affecting the lungs or throat. See also Williams v. Vanderbilt, 28 N. Y. 217, 222, 84 Am. Dec. 333; Louisville, N. O. & T. R. Co. v. Durfree, 69 Miss. 439, 13 So. 697; Ehrgott v. New York, 96 N. Y. 264, 282, 48 Am. Rep. 622; Malone v. Pittsburgh & L. E. R. Co. 152 Pa. 390, 394, 25 Atl. 638; International & G. N. R. Co. v. Terry, 62 Tex. 380, 383, 50 Am. Rep. 529; Brown v. Chicago, M. & St. P. R. Co. 54 Wis. 342, 354, 41 Am. Rep. 41, 11 N. W. 356, 911; Mobile & O. R. Co. v. McArthur, 43 Miss. 180.

5. Respecting the refusal of the tenth special instruction, it is sufficient to say that, in addition to a correct statement of the law, which is substantially given in the general charge, it embodied the substance of the fourth special instruction that has already been considered. There was no error, therefore, in refusing it.

6. Special instruction numbered 10% was directed to the question of plaintiff’s contributory negligence. Its effect was to submit to the jury whether plaintiff showed a want of ordinary care “in failing to avail herself of such means of shelter and protection as were then and there at hand, or which were *456near by,” provided there were such means at hand or “near by.” The court struck out the words “which were near by,” and “near by,” and gave the instruction as thus modified. We think there was no error in the charge. An instruction must be applicable to the facts given in evidence. On the one hand, there was no evidence tending to show that the car was safe and warm, and that plaintiff had been invited to re-enter it. On the other hand, there was evidence tending to show that there was milk on the floor of the car, and that it was being used on a high embankment in an endeavor to put the other car on the track; as well as in denial of the invitation to re-enter it. The car was at hand, but there was no evidence of any available shelter “near by.” There was no house near or in sight. Mount Vernon station was about % of a mile away, but out of sight. There was no evidence tending to show that there was a safe road or path to the station by which plaintiff could readily reach it, nor was any suggestion made to her to seek shelter there. The modified instruction in connection with the general charge was all that defendant had a right to expect.

In the general charge the following appears:

“Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of this particular situation, or doing what such person, under the existing circumstances, would not have done. The essence of the fault may lie in omission or commission. The duty is always dictated and measured by the exigencies of the situation. Therefore, upon the occasion complained of in the second count, it was incumbent upon the plaintiff to exercise and use ordinary and reasonable care and prudence for her own safety; and, if you shall find from all the evidence that the plaintiff did not use and exercise such care and prudence, and, on her part, occasioned or directly contributed in any degree to' the alleged injury and damage mentioned in the declaration, then the plaintiff is not entitled to recover, irrespective of the exact degree of contributory negligence, since, if she contributed at all to her injury and damage, that would incapacitate her from recovering in this action.”

The question was also stated at length in another part of the charge with direct application to the surrounding conditions.

*4571. The thirteenth special instruction which the court refused was to the effect that the plaintiff could not recover on account of tuberculosis of the lungs or throat, or for expenses incident thereto, “since that disease, as has been testified to by physicians, does not necessarily, reasonably, and naturally follow from exposure to cold.” If this means that the physicians had concurred in the statement that the development of the disease was. not a probable result of the exposure, it is not correct. In other respects it is an incorrect statement of the law applicable to the-evidence. It is not essential to plaintiff’s recovery under the second count, that tuberculosis of throat or lungs should have “necessarily,” as well as reasonably and naturally, followed the exposure to the dampness and cold. As we have seen, all that, was essential was that it was a natural and probable result. There was testimony tending to show that plaintiff, immediately after the exposure, contracted a severe cold in the throat which affected her voice, and that laryngitis was a natural consequence. Some of the physicians were of the opinion that tuberculosis may naturally have followed as a secondary condition. But this is unimportant. If, as the witness for the defendant said, the plaintiff must have had the germs of tuberculosis in her system, prior to the time of the exposure, yet, as he also said, exposure of the kind might excite inflammation of any organ which is exposed to tubercular infection. Taking into consideration the evidence that plaintiff had enjoyed good health and had been actively engaged in teaching school for eight years without interruption, in connection with that of the physicians, it does not seem improbable that, while the germs may have been contained in her system, they may have been developed into inflammation and rapid infection by the action of the cold. At any rate, it is not so improbable that the court would have been justified in refusing to let the jury pass upon the evidence. If, then, the jury could find that this condition, this tendency to active-tuberculosis, had a prior existence, yet, if they could also find that its development into pernicious activity was a direct and probable result of the exposure to cold, or that the exposure contributed to and hastened that development, the defendant could *458not escape liability. Guenther v. Metropolitan R. Co. 23 App. D. C. 503, 516, and cases there cited. See also Sloane v. Southern California R. Co. 111 Cal. 668, 683, 32 L.R.A. 193, 44 Pac. 320; Montgomery & E. R. Co. v. Mallette, 92 Ala. 209, 216, 9 So. 363.

8. The objections to the general charge of the court have been practically disposed of under preceding assignments of error. It fully and carefully stated the principles of law which have been approved, and defined the rule of contributory negligence in language of which the defendant has no cause to complain.

9. The last proposition argued by the appellant is founded on an exception taken to the evidence of plaintiff’s witness, Dr. Morse. This witness had testified to examining and treating plaintiff in June, 1905. He said that she then had laryngitis, and the apex of one of her lungs-was affected slightly. That this could not have been of long continuance because it affected the apex very slightly; probably a few months. The same hypothetical question that had been answered by the other physicians •was propounded to him, and he was asked to add thereto the facts of the condition found by him when he examined plaintiff in June, 1905, and give his opinion in respect of the probability of her illness having been caused by the exposure stated. Counsel for the defendant objected generally, stating no specific grounds of objection. So far, then, as the record discloses, the •objection might apply to the qualification of the witness, or to the insufficiency of the general hypothetical question, or to the additional facts coming within the knowledge of the witness through his own examination, or to all combined. This is clearly a case in which the objection should have been specific, in order that the party might have the opportunity to cure any defect, by further examination of the witness as to qualifications ; by amending the hypothetical question if important to do so; by striking out the question as to witness’s own examination ; or by specifically restating these additional facts to which he had previously testified. Washington Gaslight Co. v. Poore, 3 App. D. C. 127, 135. The objection, on the argument, is stated as applying to the additional facts. Had this objection *459been specifically stated at tbe time, however, we do not think it would have been error to overrule it. It does not come within the principle of the case relied on hy the appellant. Raub v. Carpenter, 17 App. D. C. 505, 512, s. c. 187 U. S. 159, 161, 47 L. ed. 119, 120, 23 Sup. Ct. Rep. 72. In that case it was said: “The question assumes that the witness knew sufficient facts concerning the testator on which to base an opinion that he was not of"sane mind; and yet not a single fact is stated, and it appears even that there was a positive refusal on the part of the caveators to interrogate the witness as to any such facts. And yet he is asked to give an opinion upon which he cannot be cross-examined, and the value of which the jury would be wholly unable to estimate.”

In the case at hand the witness had stated the facts observed by him in the course of his examination and treatment of the patient. He could have been cross-examined thereon had the defendant so wished. Those facts enabled the jury to form an estimate of the foundation and value of the witness’s opinion.

Finding no error in the proceedings in the court below, the judgment will he affirmed, with costs. Affirmed.