Lane v. Southern Railway Co.
Lane v. Southern Railway Co.
Opinion of the Court
Plaintiff, testifying as a witness in bis own behalf, exhibited to tbe jury bis left band. All of- tbe band, except tbe thumb and index finger, bad been cut off. He bad testified that this was tbe result of tbe injury wbicb be bad sustained when be stumbled and fell while walking, in tbe dark, on tbe unligbted walkway provided by defendant for passengers, beside its moving train toward tbe Union Station. His band bad struck against tbe track and bad been crushed by tbe wheels under tbe train. Immediately after tbe injury, plaintiff
Plaintiff testified as follows: “Just as soon as I got there, they took the scissors and cut the dead skin off and grafted some skin from my side. They took the skin off my side twice, and it took 59 stitches to sew it up. The skin on my hand as grafted isn’t as tough as the other. It is just as easy to skin as can be. When it is skinned, it does not heal up so easily; it takes a long time to heal up. Some skin was grafted also from my thigh at a different time from the grafting from my side. I suffered bad pain at the time of and after the injury, and on account of the injury. I also suffer now. Every time I work any it hurts. Every time I go to work now something in my eye draws it to one side. The pain comes in my right side once in a while,'and hurts at the point where the grafted skin was taken off.”
In apt time defendant objected to all the testimony relative to the grafting of skin from plaintiff’s side and thigh, and to the pain caused thereby, and assigns as error the refusal of the court to sustain these objections. Defendant contends that such testimony should have been excluded, for that in no event can it be liable for damages resulting from the grafting of skin by a surgeon upon plaintiff’s body, at least in the absence of evidence that this was a necessary or proper treatment of the injury to plaintiff’s hand; that such damages were not caused by any act of defendant.
The broad general rule, with respect to compensatory damages, which are given as the pecuniary equivalent for the injury done, is that the wrongdoer is liable to the person injured for all the natural and direct or proximate consequences of his wrongful act or omission; subject to certain qualifications and exceptions, not applicable to the instant case, he is liable only for such consequences. This rule is applicable in cases both of contract and of tort. 17 C. J., 728. In the case of torts, the general rule is that the wrongdoer is liable for any injury which is the natural and probable consequence of his misconduct. Such liability extends not only to injuries which are directly and immediately caused by his act, but also to such consequential injuries, as according to the common experience of men, are likely to result from such act. 17 C. J., 750.
An application of these principles to the facts presented by defendant’s assignment of error, leads to the conclusion that they cannot be sustained.
In Sears v. R. R., 169 N. C., 446, it is held that where there is some evidence that as the result of a personal injury, which was alleged to have been negligently inflicted by the defendant on its employee, two surgical operations were performed, and that the second one was made necessary by reason of the defendant’s negligence and as a proximate result thereof, it is proper for the trial judge to refuse to instruct the jury that in no view of the case was the defendant liable for the additional suffering, etc., caused by the second operation.
It has further been held that where the injured person had received unskillful treatment by a physician or surgeon, increasing the damages, defendant may be liable for such consequences where the person injured has used reasonable care in selecting the physician or surgeon, 17 C. J.,
In addition to other evidence, tending to show that treatment by skin-grafting was necessary or proper, Dr. T. M. Bizzell, admitted to be an expert physician, testified that in bis opinion, treatment by grafting skin upon tbe injured band was necessary, although grafted skin does not possess tbe vitality and resistance of natural skin.
On tbe day when this case was set for trial, and within a few hours before it was called, defendant moved for a continuance upon tbe ground that J. W. Barham, a material witness in its behalf, who bad been duly served with a subpoena, was sick and unable for that reason to attend tbe trial. Plaintiff’s counsel resisted tbe motion, and stated to tbe court that they would consent that tbe deposition of J. W. Bar-ham be taken during tbe term of court, and that they would waive notice of tbe taking of tbe deposition. In consequence of this statement, tbe court declined to allow tbe motion for continuance, and directed that tbe deposition be taken. Tbe deposition was thereafter taken by tbe court stenographer, at tbe home of J. "W". Barham, in Selma, in tbe presence of counsel for both plaintiff and defendant. Tbe formalities of signing, sealing and opening tbe deposition were duly waived. During tbe trial, defendant’s counsel offered this deposition in evidence. There was no objection by counsel for plaintiff to tbe form of tbe deposition, but said counsel stated to tbe court that they would object to such portions of tbe deposition as contradicted tbe allegations of defendant’s answer, upon which defendant relied in support of its plea of contributory negligence as a bar to plaintiff’s recovery. Tbe court stated that “it would exclude all portions of tbe deposition tending to prove contributory negligence and which were in contradiction of defendant’s pleadings.” Defendant excepted to this statement
Assignment of error based upon tbis exception cannot be sustained. Tbe deposition bad been taken informally; it bad not been returned to tbe court, as required by C. S., 1809; owing to tbe circumstances under wbicb tbe deposition was taken, C. S., 1819, and C. S., 1820 cannot be beld to apply to tbis deposition. Plaintiff bad bad no opportunity to object in writing to testimony contained in tbe deposition, and to bave these objections passed upon by tbe judge, before trial. Tbe provisions of these statutes must necessarily be beld to bave been waived by tbe consent of both parties that tbe deposition should be taken during tbe term of court at wbicb tbe case was tried. Plaintiff’s first opportunity to be beard upon objection to tbe competency of tbe testimony contained in tbe deposition was when tbe deposition was offered by defendant as evidence during tbe trial. His consent that tbe deposition might be taken without notice, and bis waiver of all formalities, required by statute, cannot be beld to be a waiver of bis right to object to incompetent testimony appearing in tbe deposition, and tp bave such objections passed upon by tbe court at tbe trial.
Tbe general statement of tbe court, before defendant bad read, or offered to read tbe deposition or any part of it, is not such a ruling upon tbe competency of evidence at tbe trial as may be made tbe ground of an exception. In order that an exception may be made tbe basis for an assignment of error, on appeal, it must be duly taken to a specific and definite ruling by tbe court upon a matter of law relative to tbe subject-matter of tbe controversy between tbe parties. After tbe statement by tbe court, defendant did not read or offer to read tbe deposition. Tbe court therefore did not rule upon any 'specific testimony contained in tbe deposition; no ruling of tbe court upon tbe admissibility or competency of testimony offered by defendant as evidence upon tbe trial is presented by tbe assignment of error. Plaintiff did not object generally to tbe deposition; be objected only to such portions as might tend to contradict defendant’s allegations with respect to contributory negligence. Phillips v. Land Co., 174 N. C., 542; Smith v. McGregor, 96 N. C., 111.
Other assignments of error, based upon exceptions by defendant to tbe admission of evidence, and to instructions of tbe court in its charge to tbe jury bave been carefully considered; it is not deemed necessary to discuss these assignments of error; they cannot be sustained.
Defendant relies chiefly upon its assignment of error based upon its exceptions to tbe refusal of tbe court to allow its motion for judgment as of nonsuit, at tbe close of all tbe evidence. Plaintiff does not con
The principle that a common carrier is held to a high degree of care in the performance of its duty to a passenger to provide for him, at its passenger stations, not only a safe place at which, but also' safe conditions under which he may go upon and alight from its trains, and pass to and from the train to the station, has been frequently applied in decisions of this Court. Leggett v. R. R., 168 N. C., 366; Roberts v. R. R., 155 N. C., 79; Smith v. R. R., 147 N. C., 448; Wagner v. R. R., 147 N. C., 315, 19 L. R. A. (N. S.), 1028; Mangum v. R. R., 145 N. C., 153; Ruffin v. R. R., 142 N. C., 120; Pineus v. R. R., 140 N. C., 450. The principle has been recognized and enforced by courts in other jurisdictions, and pursuant thereto it has been held that “stations, as well as platforms, walks, and other approaches should at night be reasonably lighted for a sufficient time before and after the arrival and departure of trains to enable passengers to alight from and board trains with reasonable safety.” 10 C. J., 919, note 74, and eases cited. The failure to provide sufficient lights to enable a passenger, by the exercise
At tbe time of bis injury plaintiff was 19 years of age; three months prior thereto be bad enlisted in tbe United States Army at Camp Bragg; prior to bis enlistment be bad lived with bis mother on her farm near Pine Level, N. C. He testified that be bad not bad much education; bis occupation was farming. Before tbe injury be was a strong, healthy young man, able to do a full day’s work; since tbe injury, be can do only a fourth of tbe work wbicb a man ought to do. He was in tbe hospital at Smitbfield for ten days and at Fort Bragg from 27 August, 1924, to 5 January, 1925. He suffered “bad pain” at tbe time of tbe injury to bis band, and continues to suffer pain on account of said injury; be has lost all tbe fingers of bis left band, except tbe index finger and tbe thumb; tbe wound was repaired by skin grafted from two places on bis side, and from bis thigh; tbe operation by wbicb tbe skin was grafted was necessary or at least proper for tbe repair of bis injured band; it caused him pain and suffering; tbis grafted skin is very thin and does not have tbe vitality and resistance of natural skin; it is easily injured, and wben bruised or scratched does not heal readily. It is manifest that, because of bis injury, be is permanently “handicapped” in doing tbe work of a farmer, or any work requiring tbe use of bis band. His injury was caused by tbe negligence of defendant, and was not contributed to by negligence on bis part. Tbe jury, under instructions from tbe court, wbicb are well supported by decisions of tbis Court, has assessed bis damages at $15,000. Tbis is admittedly a large sum; tbe trial judge, however, did not disturb tbe verdict on tbe ground that it was excessive. Gilland v. Stone Co., 189 N. C., 783. On defendant’s appeal we find no error in tbe trial upon matters of law or legal inference for wbicb tbis Court may, in tbe exercise of its jurisdiction under tbe Constitution, grant a new trial. Tbe judgment must be affirmed.
No error.
Reference
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- OTIS LANE v. SOUTHERN RAILWAY COMPANY
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