Lane v. Southern Railway Co.

192 N.C. 287

• Court: Supreme Court of North Carolina
• Decided: October 13, 1926
• Status: Published

Opinion

CONNOR, J.

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 was taken to the local surgeon of defendant for treatment. Tbis local surgeon took plaintiff to the hospital at Smithfield, N. C., where his wounded hand was treated. Two of his fingers had been cut off at the time of the injury; the little finger was cut off by the surgeon at the Smithfield Hospital. After remaining at the Smithfield Hospital for ten days, plaintiff, who was a soldier in the United States Army, went to the hospital at Fort Bragg, near Fayetteville, N. C., where his injured hand was again treated.

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.

"Where an intervening act o£ a third party, not connected with or related to, but independent of the act or omission of the wrongdoer, results in damages, distinct from the damages resulting from the first wrongful act or omission, the original wrongdoer cannot be held liable for such additional or increased damages; but where such intervening act, whether wrongful in itself or not, is made necessary or proper because of the act of the wrongdoer, he is liable for the additional or increased damages, resulting therefrom, .upon the principle that such damages are the natural and probable consequences of his act. Balcum v. Johnston, 177 N. C., 213, and cases cited. It is uniformly held to be the duty of one who has suffered a personal injury by the negligence of another, to exercise due care to mitigate the damages by having his injury treated by a physician or surgeon, if the nature of the injury is such as reasonably to-require medical treatment or a surgical operation. See Brewington v. Loughran, 183 N. C., 558, for statement by Stacy, J., of the principle as applicable to damages recoverable for breach of covenant in a rental contract. Johnson v. R. R., 184 N. C., 101, and cases cited. If the injured person exercises due care to have the injury properly treated, the result of the treatment, if not beneficial, cannot affect the damages, which he would otherwise be entitled to recover of the wrongdoer, by whose wrongful act he was injured. If the treatment of the injury, procured by the injured party, in the exercise of due care, is beneficial, and reduces the damages resulting from the act or omission of the wrongdoer, such reduction relieves the wrongdoer pro tanto; if such treatment is not beneficial, and results in increased or additional damages, the wrongdoer whose act or omission made the treatment necessary or proper must be held liable for such additional or increased .damages.

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., 738, note 56 and cases cited. In tbe instant case, plaintiff was taken first to tbe local surgeon of defendant; tben by bim to a hospital, where be remained, under treatment, for ten days; be tben went to tbe hospital maintained by tbe United States Government at Camp Bragg, for tbe care and treatment of soldiers in tbe service of tbe government. There was evidence sufficient at least for tbe jury to find that plaintiff bad exercised due care in tbe selection of physicians and surgeons to treat bis wounded band, and- that such treatment as be received was proper, if not necessary, to repair tbe injury to plaintiff’s band, alleged to have been caused by defendant’s negligence, and to mitigate or reduce tbe damages resulting from such injury. If tbe damages resulting immediately from tbe wrongful act of defendant was reduced by grafting skin, taken from plaintiff’s body, upon tbe wounded band, it is but just that defendant should be held liable for damages resulting from tbe grafting.

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 of tbe court, and did not thereafter offer to read to tbe court or tbe jury any part of tbe deposition.

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 contend that there was negligence with respect to the construction of the place at which he was required to alight from the train, when it was stopped at Selma, or with respect to the construction of the walkway provided for him and other passengers to pass from the train to the Union Station. There was evidence to sustain his contention that it was dark when the train arrived at Selma; that he was required to alight from the train at a place 40 or 50 yards from the Union Station; that there were no lights at said place, or on the walkway, the lights at the station ahead of him not being sufficient to enable him to walk, with reasonable safety, toward the station; that there was a ditch just off the walkway, extending toward the station, which he could not see, because of the darkness, but which he knew was there; that in order to avoid falling into this ditch, he was walking close to the train, which began to move soon after he alighted; that there was a large number of passengers walking toward the Union Station at the time; that he wished to get to the station in time to purchase a ticket from Selma to Fayetteville, for the Atlantic Coast Line train, which made connection at Selma with defendant’s westbound train; and that all these facts rendered the place along which he was required to walk unsafe, and that this was the proximate cause of his injury. This evidence was sufficient to be submitted to the jury, upon the first issue; it cannot be held that plaintiff’s evidence was consistent only with an affirmative answer to the second issue, involving the defense of contributory negligence. There was a conflict in the evidence, at least, as to the proximate cause of plaintiff’s injury; this required the submission of the evidence to the jury.

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 of reasonable care for bis own safety, under conditions existing at tbe time, certainly wben caused by or known to tbe carrier, to walk from tbe place at wbicb be is required to aligbt from tbe train, on a dark nigbt, along tbe walkway provided by tbe carrier, to tbe station, is a breach of tbis duty, and wben tbe proximate cause of an injury to tbe passenger, is actionable negligence. Upon tbe application of tbis principle to tbe facts wbicb the jury might find from tbe evidence in tbis ease, tbe motion for judgment of nonsuit was properly refused by tbe court.

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.

Stagy, O. J., dissenting.