Armstrong v. Spokane Intern. Ry. Co.

• Decision Date: 26 April 1918
• Docket Number: 14642.
• Citation: 172 P. 578,101 Wash. 525
• Parties: ARMSTRONG v. SPOKANE INTERNATIONAL RY. CO.
• Court: Washington Supreme Court

172 P. 578

101 Wash. 525

ARMSTRONG v. SPOKANE INTERNATIONAL RY. CO.

No. 14642.

Supreme Court of Washington

April 26, 1918

Department 2. Appeal from Superior Court, Spokane County; Hugo E Oswald, Judge.

Action by William R. Armstrong against the Spokane International Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded for new trial, with direction.

Allen, Winston & Allen, of Spokane, for appellant.

Smith &amp Mack and John Pattison, all of Spokane, for respondent.

ELLIS C.J.

This is an action for personal injuries. The facts briefly are these Defendant's railway tracks cross Napa street in the city of Spokane at its intersection with Broadway. Plaintiff at about 8:30 o'clock on the evening of July 22, 1916, was driving his automobile north on Napa street. At the crossing of these tracks a collision occurred between his automobile and the rear end of one of defendant's trains, destroying the automobile and causing the injuries to plaintiff of which he complains. The negligence alleged was backing the train through a cut onto the crossing at a high rate of speed with no lights on the rear end, it being dark, and without giving notice or warning of its approach. Defendant admitted the collision and the destruction of the automobile, denied any negligence on its part, and alleged contributory negligence on plaintiff's part. At appropriate times defendant moved for a nonsuit and for a directed verdict. These motions were denied. The jury returned a verdict in plaintiff's favor for $2,600. Defendant moved for judgment non obstante veredicto or in the alternative for a new trial. These motions were also denied. Judgment was entered on the verdict. Defendant appeals.

Respondent has moved to dismiss the appeal on two grounds: First, that appellant failed to file the record within the time provided by law; second, that it failed to serve notice of appeal upon the cost bond sureties. As to the first ground we think a sufficient excuse was shown. It appears that it was the custom in Spokane county to allow the transcript and statement of facts to remain in the office of the clerk of the court for the use of the adverse party in the preparation of his brief; the clerk being instructed to forward all papers to this court when the briefs have been prepared and filed. The transcript and statement of facts were so filed well within the time, but when respondent had prepared his brief the clerk, apparently through an oversight, failed to forward the record to this court. While the error may have caused some delay, the cause was advanced on the docket of this court for one term, thus minimizing such delay. As to the second ground it is sufficient to say that appellant has filed in this court a written waiver of any claim against the cost bond and the sureties thereon. The motion to dismiss is denied.

Appellant has advanced several claims of error, but we find it expedient to discuss only one of them except in a general way. The evidence was voluminous and sharply conflicting. We have considered it with much care, but the conclusion which we have reached makes unnecessary an extended statement. We are satisfied that there was ample evidence to take the case to the jury upon the questions of appellant's negligence and respondent's contributory negligence.

Error is assigned upon the failure of the court to give certain instructions requested by appellant. We have considered them carefully in connection with all of the instructions which were given. We find that in so far as they were proper at all they were fully covered in every material particular by the instructions which were given. No exceptions were taken to the instructions given by the court. They sufficiently covered the case as presented, in every particular save one to which we shall hereafter advert.

Touching his loss of time, earnings, and earning capacity, respondent was permitted to testify that he was a farmer operating his own land and certain leaseholds, and further:

'Q. What was your earning capacity per annum prior to this accident? Mr. Winston: I object on the ground that it is incompetent and immaterial, not within any of the issues in the pleadings, there being no allegations in the complaint of loss of earning capacity. (Thereupon the objection was overruled, and it was agreed that defendant need make no further objections to this line of testimony.) A. My earning capacity was about $1,500 per year. After the injury I had to get a man. He hitched my team to a binder, and it ran away, so I had to hire all my cutting done, and I disposed of my threshing rig because I was not able to take care of it; I gave up the leases because I was not able to work and oversee them; all this on account of my injuries.'

Appellant contends that this evidence was inadmissible in that it tended to prove an element of special damage of which there was no allegation in the complaint. Respondent insists that it was admissible in proof of general damages necessarily resulting from the injury, and that in any event its admission, if error, was cured by an instruction.

It is undoubtedly the law that a plaintiff, under a general allegation of damages, may recover all such damages as are the natural and necessary result of such injuries as are alleged, for the law implies their sequence. 2 Sutherland, Damages (4th Ed.) § 418. But not every loss which may result from the injury is a natural and necessary result of the injury. Injury to business as such, loss of business profits as such, loss of contemplated contracts or profits thereon are special damages. Where capable of proof at all, they can only be proved under an allegation of the specific facts showing such special damages, and then only by competent evidence that they resulted from the injury, and not from other causes. We attempted to point out this distinction and mark the limits of legitimate proof in the recent case of Singer v. Martin, 96 Wash. 231, 241, 164 P. 1105, which is cited by appellant. In that case, however, the plaintiff in his complaint alleged that he had been 'compelled to neglect his business for over a month.' We held that this allegation was sufficient to warrant proof of damages for loss of time or loss of personal earning, but not damages for injury to business as such nor for loss of business profits as such. The plaintiff was permitted to introduce evidence of his loss of business profits as such, and the court instructed that he could recover for loss to business. For this error the judgment was reversed. But we did not hold that the allegation of loss of time and of personal earnings was a necessary allegation to a recovery for such loss. We merely remarked that there was such an allegation in the complaint there involved. In the case of Horton v. Seattle, 61 Wash. 301, 112 P. 366, we intimated, without deciding, that evidence of loss of earning capacity was inadmissible under a complaint which failed to allege such loss, but held that the evidence there admitted was little more than an incidental reference to such loss, not followed up by any attempt to prove any loss of time; hence was not prejudicial. We have been cited to no decision of this court directly passing upon the question here involved, and recall none. The decisions from other jurisdictions are hopelessly divided. Many courts hold that damage through loss of time, impaired earning capacity, or interference with work are such necessary results of personal injury as to be capable of proof without being specifically pleaded, especially when the disability is total or the injury permanent. For examples see Murdock v. N.Y. & B. Dispatch Express Co., 167 Mass. 549, 46 N.E. 57; Palmer v. Winona Ry. & L. Co., 83 Minn. 85, 85 N.W. 941; Terre Haute Elec. Co. v. Watson, 33 Ind.App. 124, 70 N.E. 993; Missouri, Kan. & Tex. Ry. Co. v. Johnson (Tex. Civ. App.) 37 S.W. 771; Bailey v. Centerville, 108 Iowa, 20, 78 N.W. 831. Others, perhaps a greater number, hold that such damages are to be regarded as special, provable only when specifically averred. For examples see Union Trac. Co. v. Sullivan, 38 Ind.App. 513, 76 N.E. 116; Mellor v. Missouri P. R. Co., 105 Mo. 455, 16 S.W. 849, 10 L. R. A. 36; Farrington v. Cleponis & Parnarusky, 82 Conn. 258, 73 A. 139; Chesapeake & O. Ry. Co. v. Crank, 128 Ky. 329, 108 S.W. 276, 16 L. R. A. (N. S.) 197; Irving v. Stevensville, 51 Mont. 44, 149 P. 483; Ill. Cent. R. Co. v. Beeler, 142 Ky. 772, 135 S.W. 305; Fitchburg R. Co. v. Donnelly, 87 F. 135, 30 C. C. A. 580.

But whatever may be the correct rule in case of injuries to laborers, ordinary mechanics and the like, whose earnings may be said to be standardized, and hence presumably known to the other party without averment ( Stowe v. La Conner Trading & Transp. Co., 39 Wash. 28, 80 P. 856, 81 P. 97), it seems to us that the rule last above noted should apply in cases where the value of lost time or lost earnings of the injured person are dependent upon peculiar conditions. When the consequences of an injury are peculiar to the circumstances, condition, or affairs of the injured person, the law cannot imply damages simply from the act causing the injury ( Tomlinson v. Derby, 43 Conn. 562, 567). Loss of earnings in a special employment, business, or profession or from any peculiar condition of the injured person, therefore, cannot be proved without being alleged. For illustrative cases see Luessen v. Oshkosh Elec. L. & P. Co., 109 Wis. 94, 85 N.W. 124, 125; Rush v. Metropolitan St. Ry. Co., 157 Mo.App. 504, 137 S.W. 1029; Hart v. Met. St. Ry. Co., 121 A.D. 732, 106 N.Y.S. 494; Uransky v. Railroad Co., 118 N.Y. 304, 23 N.E. 451, 16 Am. St. Rep. 759; Melwitz v....