215 Mass. 440 | Mass. | 1913
These two actions were tried and have been argued together. They are brought to recover for injuries caused by and damages arising out of a collision of trains on the defendant’s
The first action is for the plaintiff’s personal injuries and for the money in the handbag belonging to him. The second action is for loss of the services and consortium of his wife during an illness subsequent to the accident, and for the expenses incident to such illness.
An action for the injuries sustained by the wife was brought by her and a verdict of $5,000 was rendered in her favor on which judgment was entered and an execution issued which was satisfied.
The cases were tried before a judge
In the first action the judge found for the plaintiff and assessed the “damages in the sum of $750 including therein $100 for medical attendance.” He ruled as “matter of law that the plaintiff cannot recover for money in the bag as it appears and I find that it was not carried for necessary travelling expenses.” There is nothing to show that the money in the bag which the plaintiff alleged to belong to him was for travelling expenses, and it is plain that the ruling and finding in regard to such money were right. Levins v. New York, New Haven, & Hartford Railroad, 183 Mass. 175. Dunlap v. International Steamboat Co. 98 Mass. 371. Jordan v. Fall River Railroad, 5 Cush. 69.
The amount which the plaintiff was entitled to recover for personal injuries and which should be allowed for medical attendance on him was especially a matter for the trial judge to pass upon. He saw and heard the plaintiff and his witnesses as well as the witnesses for the defendant, and had opportunities which we have not of judging how much weight should be given to their testi
In regard to the other action the judge found that “the plaintiff’s wife received full compensation from the defendant for any injuries suffered by her by reason of the accident,” and he ruled as matter of law that the plaintiff was not entitled to recover for loss of consortium. The evidence warranted the finding and the ruling was clearly right. Bolger v. Boston Elevated Railway, 205 Mass. 420. Feneff v. New York Central & Hudson River Railroad, 203 Mass. 278.
The plaintiff asserted and introduced evidence tending to show that after the accident his wife had an ovarian tumor of which the accident was the exciting cause, and that as a result of that and of other injuries sustained by the accident she suffered from neurasthenia and was ill for a long time and that he was put to great expense for medical attendance and nursing for her. The plaintiff asked the court to make the following findings or rulings: “3. That upon all the evidence as a matter of law the defendant is liable in damages as a case of directly ensuing loss for those damages to the plaintiff caused by the ovarian tumor which developed after the injuries to the plaintiff’s wife, Virginia H. Whitcomb, and the resulting surgical operation and the after condition 4. That the defendant is liable not only for all damages from traumatic injuries resulting from the accident, but also for all other diseases and disabilities which were set in motion
These findings, if warranted by the evidence, as we think they were, dispose of the rulings or findings asked for. There was ample evidence from the medical experts of the defendant to sustain the finding that the ovarian cyst or tumor was not due directly or indirectly to the accident. And if the tumor was not due directly or indirectly to the accident, then the defendant was not and could not be liable as matter of law for the damages caused by it and for "the resulting surgical operation and the after condition.” It was for the judge who tried the case to say in the first place what injuries resulted from the accident and what, if any, diseases were set in motion by it as the direct and efficient cause, and then to say what medical and other attendance and treatment were necessary and what the fair value of the services and treatment so rendered was. See Hunt v. Boston Terminal Co. 212 Mass. 99. By “necessary” must be understood to have been meant reasonably necessary in view of the character of the injury or disease. There was testimony from one of the defendant’s witnesses who saw the plaintiff’s wife shortly after the accident, that he “thought it would take her some time be
We do not discover anything which requires that the exceptions should be sustained.
Exceptions overruled.
Morton, J.