The Ohio & Mississippi Railroad Company v. Hecht

• Decision Date: 16 June 1888
• Docket Number: 13,854
• Citation: 17 N.E. 297,115 Ind. 443
• Parties: The Ohio and Mississippi Railroad Company v. Hecht
• Court: Indiana Supreme Court

17 N.E. 297

115 Ind. 443

The Ohio and Mississippi Railroad Company v. Hecht

No. 13,854

Supreme Court of Indiana

June 16, 1888

Petition for a Rehearing Overruled Sept. 20, 1888.

From the Jefferson Circuit Court.

Judgment affirmed.

H. D McMullen and J. McGregor, for appellant.

C. A Korbly and W. O. Ford, for appellee.

OPINION

Elliott, J.

The appellee bought a ticket entitling him to passage on the trains of the appellant, and, while at the appellant's station at North Vernon, for the purpose of entering one of its trains, as he was entitled to do under the ticket he had purchased, he was injured, without any fault on his part, by stepping into a hole in the platform, which the appellant, in disregard of its duty, had negligently permitted to remain unprotected. The complaint thus describes the injury sustained by the appellee, and states the damages occasioned by the wrong of the carrier: "The plaintiff was violently thrown down and upon his valise, which he was carrying in his hand, and his foot and ankle were sprained, strained, and otherwise greatly injured and bruised, and the ligaments and tendons of plaintiff's foot were strained and drawn and permanently injured, so that the plaintiff suffered great pain and anguish and became sick, sore and lame, and was confined to his bed and room from thence hitherto, and was wholly incapacitated from attending to his usual vocation, and he laid out and expended a large sum of money, to wit, $ ----- for doctor's fees and medicines and nursing, in attempting to be cured of said hurt, and received a permanent injury which will lame him for life and always impede his successful prosecution of his business, whereby he has sustained damages in the sum of five thousand dollars."

The complaint makes a case entitling the appellee to full compensation for the injury which proximately resulted from the appellant's wrong. Where a disease caused by the injury supervenes, as well as where the disease exists at the time of the injury, and is aggravated by it, the plaintiff is entitled to full compensatory damages. The decisions upon this point are numerous and harmonious. Louisville, etc., R. W. Co. v. Wood, 113 Ind. 544, 14 N.E. 572, and cases cited p. 567; Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551, 9 N.E. 476; Indianapolis, etc., R. W. Co. v. Pitzer, 109 Ind. 179, 6 N.E. 310, and cases cited p. 188; Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409, 3 N.E. 389; Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346; Jeffersonville, etc., R. R. Co. v. Riley, 39 Ind. 568; Keyser v. Chicago, etc., R. W. Co., 66 Mich. 390, 33 N.W. 867; Quackenbush v. Chicago, etc., R. W. Co., 73 Iowa 458, 35 N.W. 523.

The complaint is sufficiently comprehensive to entitle the plaintiff to give evidence of the nature and consequences of his injury.

In Ehrgott v. Mayor, 96 N.Y. 264, it was said by the court: "Upon the trial plaintiff gave evidence tending to show that he had a disease of the spine of a permanent nature as the result of his injuries. This evidence was objected to by the counsel for the city, on the ground that the plaintiff had not alleged such a result from the injury in his complaint. We think the complaint is sufficient. It alleges that he suffered great bodily injury; that he became, and still continues to be, sick, sore and disabled; that he was obliged to spend large sums in attempting to cure himself, and was prevented for a long time from attending to his business, and that he was otherwise injured to his damage $ 25,000. These allegations are sufficient to authorize proof of any bodily injury resulting from the accident, and if the defendant desired that they should be more definite, it could have moved to have them made more specific, or for a bill of particulars."

Chief Justice Campbell said, in Johnson v. McKee, 27 Mich. 471: "When the defendant was informed that damages were sought for sickness and disorder, and their attendant expenses, as well as for wounds and bruises, he was bound to expect evidence of any sickness the origin or aggravation of which could be traced to the act complained of."

In the case of Delie v. Chicago, etc., R. W. Co., 51 Wis. 400, 8 N.W. 265, the question before us was carefully examined and well discussed, the court saying, among other things, that "It is not claimed on the part of the appellant, that the complaint does not state a cause of action. If the allegations of injury are sufficient to entitle the plaintiff to recover anything more than nominal damages, then it seems to us very clear that he is entitled to recover such damages as he actually sustained by reason of all the injuries to his person resulting from the accident, and that, in order to enable the jury to estimate his damages, he must be permitted to show what those injuries in fact were. We think that, in cases of this kind, if the defendant does not desire to have the plaintiff make his allegations as to the nature of his injuries more definite and certain, and does not ask to have it done by a proper motion for that purpose, he must come prepared to meet any proof which the plaintiff may offer which shows or tends to show the real nature of the injuries which were the direct result of the accident. This, we think, was the rule held, even under the old practice, by this court in Birchard v. Booth, 4 Wis. 67 (92). In that case the court held that, under allegations as general as in this case, the plaintiff might show that as one of the results of the battery his shoulder-blade was broken. The present chief justice, in his opinion in that case, says: 'It was contended on the argument that the fracture of the shoulder-blade should have been specially and circumstantially set forth in order to apprise the defendant of the fact to be proved; and that it was a surprise upon him to admit proof of it under the general language of wounding, beating, bruising, etc.; and, although we think such a special statement of the injury might have been very proper, yet we can not say that it was essentially necessary. As already stated, we can but view that injury as the natural and necessary result or consequence of the battery. That wrongful act was the efficient producing cause of the fracture and loss of health, and we think it is sufficient to allege it in this general manner.' See, also, Schmidt v. Pfeil, 24 Wis. 452 (455). If, under the old rules of pleading, under general allegations of wounding, bruising and beating, the plaintiff could be permitted to show all the injuries to the person which resulted from the battery, there is much greater reason for allowing such evidence under the code practice, which gives the defendant the clear right to have the general allegations made more specific and certain if he desires it."

At another place it was said: "But the counsel for the appellant urges that, as the hernia did not make its appearance until nine months after the accident, it can not be said that it was the result of the accident, and certainly not the direct and immediate result thereof, and therefore evidence concerning it should not have been admitted under the allegations of the complaint. If the hernia had appeared immediately after the accident, under the rule above stated, there would be no doubt as to the right of the plaintiff to prove the facts as one of the results of the injury; and we think the mere fact that it did not become apparent to the plaintiff until some time after, can make no...