Arthur A. Blunt v. Montpelier & Wells River Railroad

• Decision Date: 22 May 1915
• Parties: ARTHUR A. BLUNT v. MONTPELIER & WELLS RIVER RAILROAD
• Court: Vermont Supreme Court

94 A. 106

89 Vt. 152

ARTHUR A. BLUNT v. MONTPELIER & WELLS RIVER RAILROAD

Supreme Court of Vermont

May 22, 1915

May Term, 1915.

CASE for negligence. Plea, the general issue. Trial by jury at the June Term, 1914, Caledonia County, Butler, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment reversed and cause remanded.

H C. Shurtleff for the defendant.

Porter Witters & Harvey, and F. S. Rogers, for the plaintiff.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.

OPINION

MUNSON

The plaintiff, while riding in a passenger coach of the defendant, was injured by a suit case, which fell upon his head and neck from a rack which was attached to the side of the car and extended over his seat.

The declaration alleges that the plaintiff was injured in and about his head, neck, shoulders, spine and other parts of his body, and thereby became sore, lame, disordered, and affected with nervous and spinal troubles. The plaintiff was permitted to testify that his left arm had at times a feeling of arrested circulation, or of numbness, and that at first he was unable to pick up anything that required a grasp. Defendant claims that these were special damages not covered by the declaration; but we think nothing more was needed by way of allegation to make the evidence admissible. In an action for personal injuries, evidence is admissible of pains in other parts of the body than those specified in the declaration, provided such pains are referred to the injuries which are set out in the declaration. Vt. Dig. 997, pl. 112; Thompson v. National Exp. Co., 66 Vt. 358 29 A. 311; Lewis v. Crane, 78 Vt. 216, 224, 62 A. 60. The medical witness testified that the use of the arm might easily be affected by such an injury as the plaintiff received, through the shock to the nerves that cause motion and sensation; that numbness of the arm would usually result from a concussion on the back of the neck, not because the blow directly struck the nerve, but because it affected the whole cerebral structure.

The rack in question was about thirty inches long and six inches deep, constructed with flaring side and ends, and of such breadth that the upper line of the front was eight or nine inches from the side of the car. It was about four feet above the seats, and so located that half its length was over the plaintiff's seat, and half over the open space in front of the seat behind. The suit case was somewhere from twenty-four to thirty inches long, and from twelve to fifteen inches broad. When the plaintiff entered the car he placed his bags on the floor in front of his seat, and sat down about in the middle of the seat, and turned to speak with an acquaintance who was one or two seats back on the opposite side. After some conversation the plaintiff turned around and commenced to read his paper, and continued reading until the suit case fell.

The court permitted plaintiff's counsel to inquire of him whether anyone reached up and put the suit case in the rack after he sat down, and he answered "No." It was afterwards made to appear in cross-examination that this answer was based on the fact that the plaintiff did not see, hear or feel anything being done in connection with the suit case. The defendant treats this as opinion evidence, but we do not so regard it. Evidence of this character is the knowledge which the witness derives from the non-observance of things which he would have been likely to observe in the circumstances, if they had existed or occurred. We think the conditions here were such that the fact that the plaintiff did not notice such a movement as would be required in placing the suit case in the rack, was some evidence tending to show that it was not placed there after he took his seat.

The plaintiff was asked in direct-examination what the conductor said to him at the time as to whether he should have seen and removed the suit case, and after some unreported discussion the question was excluded. The plaintiff was asked in cross-examination what he said to the conductor about his injury--whether he was injured or not--or how badly he was injured; and his reply was: "I said that I wouldn't care anything about the breaking of my hat, nor should I ask him to pay for that, but I should let him know if I was badly hurt, and I thought by the feeling that I was in for a severe sickness." In redirect examination the plaintiff was asked what the conductor said to him at this same time, as a part of the same talk, as to what he should have done about the suit case. This was asked under a claim that the defendant's introduction of a part of the conversation entitled the plaintiff to have it all; was objected to on the ground that the testimony should be confined to the subject which the defendant inquired about; and was received because the defendant had opened the conversation, and this was explanatory of what the plaintiff said. The answer was this: "He said that he should have seen that the suit case was not there in the rack." The plaintiff was then asked what the conductor said about his hat being broken, and answered: "He said he wanted to buy me a new hat--says We want to buy you a new hat;' to which I replied, I don't care anything about the hat unless I am injured,' which I felt that I was."

The admission of this evidence was error. The conductor had no authority to bind the defendant by admitting his negligence. His statement sustained no relation to the accident that could render it...