Big Sandy & C.R. Co. v. Blankenship

• Decision Date: 21 April 1909
• Citation: 133 Ky. 438,118 S.W. 316
• Parties: BIG SANDY & C. R. CO. v. BLANKENSHIP.
• Court: Kentucky Court of Appeals

118 S.W. 316

133 Ky. 438

BIG SANDY & C. R. CO. v. BLANKENSHIP.

Court of Appeals of Kentucky.

April 21, 1909

Appeal from Circuit Court, Pike County.

"To be officially reported."

Action by Spicey Blankenship against the Big Sandy & Cumberland Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sheppard Goodykoontz & Scherr and A. E. Auxier, for appellant.

P. B Stratton, W. A. Dougherty, and Roscoe Vanover, for appellee.

O'REAR J.

Appellant is a common carrier, operating a railroad extending through Pike county, Ky. Appellee was a passenger on a train on appellant's road, and claims to have sustained injuries in a collision between its train and a log train being operated on the same road by a lessee or licensee of appellant. It was the same collision under consideration in the appeal of this appellant against Harriett Blankenship (this day decided) 118 S.W. 315. It was there held that appellant was liable for the negligence of the lessee where injury was thereby inflicted upon appellant's passenger. The additional questions presented in this case are: Did appellee receive the injuries for which she sues as the result of that collision, and did the trial court correctly submit to the jury elements of her injury for which the law allows a recovery?

Appellee claims that she was enceinte, being about four months advanced with child; that in the collision she was thrown upon her side and bruised and stunned, so that she was made sick and caused to abort. The evidence on her behalf was that in the collision she was thrown violently upon her side causing her great pain, following the temporary stunning; that within a half hour afterward her menstruation reappeared, and for the first time since she had conceived, and that that evening she had violent pains in her abdomen, which she describes as "bearing down pains"; that these pains continued intermittently for some days, and she consulted a midwife with reference to them. Acting upon her advice, she remained as quiet as she could, hoping that the trouble was merely threatened and would pass; but it continued for a week or so, becoming worse, when she was delivered of a child stillborn. She claims, also, that she continued to suffer from the effects of the injury by reason of a displacement of her womb, and had not finally recovered from the effects at the time of the trial. It may be that the latter claim was not supported by the evidence, and was, in fact, shown not to be true. But what view the jury took of that particular feature of the case we cannot tell, nor does it appear to be material now, as there was clearly enough in the case to sustain the very modest verdict returned in appellee's behalf--$500.

The trial court, in instructing the jury, after defining care and negligence, gave this as the law of the case: "If the jury should believe and find from the evidence that, while the plaintiff was a passenger upon defendant's train, the defendant company, by its agents or servants in control of said train, knew, or by the exercise of ordinary care could have known, that the log train of the Hurricane Lumber Company was upon its tracks, and ran its passenger train into and collided with said log train, and that by reason of said collision the plaintiff sustained any injury causing plaintiff to miscarry or give premature birth to her child or caused plaintiff womb trouble, they will find for the plaintiff such sum in damages as they may believe from the evidence she has sustained, so the sum so found, if anything, does not exceed $10,000, and, if the jury should not so believe and find, they will find for the defendant. If the jury should find for the plaintiff, they will only take into consideration in estimating the damages the mental and physical suffering, if any, and the permanent reduction in plaintiff's power to earn money, if any, caused by said injuries." Appellant insists that "there is little doubt that the jury awarded this verdict against appellant, not because of believing her health was to any extent impaired by reason of this miscarriage, but for the loss of the child." Tunnicliffe v. Bay Cities Consolidated R. R. Co., 102 Mich. 624, 61 N.W. 11, 32 L. R. A. 142, and Hawkins v. Front Street Cable R. Co., 3 Wash. 592, 28 P. 1021, 16 L. R. A. 808, 28 Am. St. Rep. 72, are cited as holding that a recovery by the mother against one negligently causing the death of the child in her womb and its premature birth is not allowed. The question decided in the first-named case was that the loss of the society and prospective earnings of the child is not a proper element of damages in an action by a married woman for injuries which resulted in a miscarriage. The trial court in that case had charged the jury that, "if the plaintiff had lost a child by reason of the liability of the defendant in this case, you may give damages for it. The society, enjoyment, and prospective services of the child is a recognized element in that regard, and you may give what it is reasonably worth." In commenting upon that charge the Supreme Court of Michigan wrote: "This charge was clearly erroneous. There was, of course, no proof in the case as to the prospective earnings of the child, even if the mother would be the proper person to recover for such a loss. Nor would the loss of the child's society be a proper element of damages. While the jury is allowed to consider the case with all its facts,...