Baltimore City Pass. Ry. Co. v. Baer

• Decision Date: 24 November 1899
• Citation: 44 A. 992,90 Md. 97
• Parties: BALTIMORE CITY PASS. RY. CO. v. BAER.
• Court: Maryland Court of Appeals

44 A. 992

90 Md. 97

BALTIMORE CITY PASS. RY. CO. v. BAER.

Court of Appeals of Maryland

November 24, 1899

Appeal from court of common pleas; Henry D. Harlan, Judge.

Action by George Baer against the Baltimore City Passenger Railway Company From a judgment for plaintiff, defendant appeals. Affirmed.

Argued before MCSHERRY, C.J., and BOYD, FOWLER, PAGE, SCHMUCKER, and PEARCE, JJ.

Arthur W. Machen and Wm. S. Bryan, Jr., for appellant. William Colton, for appellee.

SCHMUCKER J.

The appellee sued the appellant company for injuries sustained by him when boarding one of its cars. The injuries were received on May 7, 1897, and the suit was brought on the 22d of the same month. The declaration avers that the appellee hailed the car at the corner of two streets; that it stopped, and he attempted to board it, but that it was negligently and prematurely started before he could get into it, and he was thrown to the street, and dragged for some distance, whereby "he received a serious nervous shock, was injured about the body, arms, and head," was compelled to lay out money, etc., "and had been deprived of the opportunity to attend to his business or avocation of a traveling salesman," etc. The accounts given by the witnesses of the happening of the accident are conflicting, but it is sufficient for the purposes of this opinion to say that there was evidence tending to show the following facts: The appellee attempted to board an open trolley car when it had come to a stop at the corner of Eutaw and Baltimore streets. He had gotten both feet upon the footboard which runs along the side of the car, and was about to step up into the car when, at the signal of the conductor, it started with a sudden jar, and threw him off the footboard, and dragged him along the street for from 30 to 50 feet before the conductor was able to stop it. The appellee held to one of the sidebars of the car until it was stopped, and he was bruised and injured in the legs, side, and abdomen by being dragged along in that position. The evidence tended, also, to show that some of these injuries were of a permanent nature. At the trial of the case on March 25, 1898, the appellee, having testified that since the accident he had lost a great deal of his will power and physical power, was asked by his counsel what was the condition of his vision before the injury, as compared with it afterwards, to which he replied that there was considerable change that he did not see as well now as before the accident. He was further asked by his counsel whether or not he was compelled to make calculations of his purchases and sales in his business, and whether there was any difference in his condition in that respect since the injury, as compared with his condition before the injury, to which he replied that he found some deficiency in that respect; that before the accident he could figure more quickly. Dr. Archibald Atkinson, who attended the appellee professionally after the accident, when asked whether, in his opinion as a medical man, the injury received by the appellee would probably affect his vision, testified as follows: "Vision is a thing very hard to get at, unless you have regular examinations, but I should think the injury was sufficient to so jar the optic nerve as to cause a diminution in that respect. I couldn't say positively. I wouldn't say positively." The same witness, being asked whether the appellee's alleged inability to figure as quickly after as before the accident would probably and ordinarily arise from such an injury as he had received, replied: "Well the brain is greater than the optic nerve. The optic nerve is only a small part of it, and if it is affected the optic nerve is also affected. *** My conclusion would be yes." He also testified that he saw no special nervous symptoms in the appellee at the time of the accident, but that his condition 10 months afterwards, at the time of the trial (he being then very much emaciated), was the effect of some injury to the nervous system, and would go towards showing that he had suffered some great shock or injury. The appellant excepted to the admission of all this testimony of the appellee and his physician, and by its sixth and seventh prayers, which the court rejected, asserted that there was no legally sufficient evidence to enable the appellee to recover for any injury to his nervous system, nor any sufficient evidence, under the pleadings, to enable him to recover for any injury to his vision. The questions presented by these exceptions and prayers are: First, whether the injury to the vision of the appellee was such a natural consequence of the accident which occurred to him that it did not require to be specially alleged in the declaration, in order to enable him to recover for it; and, secondly, whether there was any legally sufficient evidence that he had in fact suffered injury to his vision, or from nervous shock. This court has had frequent occasion to consider and apply the proposition that damages which are not the natural and probable consequences of the injury complained of cannot be recovered unless they have been set out in the declaration. In the cases of Ellicott v. Lamborne, 2 Md. 136, and McTavish v. Carroll, 13 Md. 429, both of which were actions for damages to real estate, the court held that all damages must be specially alleged which are not the necessary consequences of the act complained of, even though they may be the natural and probable effect of it; but in more recent cases of suits for personal injuries the doctrine has been more broadly and liberally stated. In Sloan v Edwards, 61 Md. 99, where this issue was...