Baldwin v. Western Railroad

70 Mass. 333

Opinion

Bigelow, J.

*

1. The testimony that the person, who was driving the carriage in which the plaintiff was at the time of the accident, was, by common reputation, a careless driver, was rightly rejected. It might have been competent for the defendants to show that he was in fact unsldlful or careless in the management of a horse. Adams v. Carlisle, 21 Pick. 146. But evidence on this point must come from those who can testify to the fact of their own knowledge. It cannot be proved by reputation.

2. We are of opinion that under the practice act, St. 1852, c. 312, a general allegation of damages at the end of the declaration will not entitle a party in an action of tort to prove special damages; that is, such damages as are not implied by law. because they do not necessarily arise from the act complained of. The rule of the common law which requires a plaintiff, for the purpose of guarding against surprise upon his adversary, to set out in his declaration any particular damage which he has sustained, in order to enable him to prove it, remains unchanged. There is no specific provision in the statute which authorizes any alteration in the form of pleading in this particular. On the contrary, it is expressly provided in § 6 that the rules of evidence and the measure of damages shall remain unchanged, “ except so far as the same may be herein specially provided for.” Besides : to the forms of declarations in actions of tort appended to the statute, and immediately following the first form there prescribed, there is this significant note : “ The ad damrvmn is a sufficient allegation of damage in all cases in which special damages are not claimed.” This is decisive of the intent of the legislature to retain the old rule of pleading, which requires the grounds of special damage to be distinctly averred.

In the present case, the evidence offered by the plaintiff to show her education and learning, and that she was a school teacher, could have had no relevancy or application to the questions at issue between the parties, except as forming the basis on which special damages were to be assessed for the injury of which she complained. It did not tend to show an injury falling within the class of general damages. That class includes only such damages as any other person, as well as the plaintiff, might, under the same circumstances, have sustained, from the acts set out in the declaration. Without determining the more difficult question whether the evidence would be admissible under any form of declaration, it is clear that this part of the plaintiff’s claim could be founded only upon a peculiar loss sustained by her by reason of the interruption to her occupation resulting from the tortious act of the defendants. They were therefore in their nature damages not necessarily flowing from the acts set out in the declaration, and of which the defendants could not be supposed to have notice unless they were properly averred 1 Chit. Pl. (6th Amer. ed.) 440. Dickinson v. Boyle, 17 Pick. 78 Squier v. Gould, 14 Wend. 159.

Exceptions sustained.

Thomas, J. did not sit in this case.