DeLie v. C. & N. W. Ry. Co.

• Decision Date: 02 March 1881
• Citation: 8 N.W. 265,51 Wis. 400
• Court: Wisconsin Supreme Court
• Parties: DELIE v. C. & N. W. RY. CO.

51 Wis. 400

8 N.W. 265

DELIE

v.C. & N. W. RY. CO.

Supreme Court of Wisconsin.

Filed March 2, 1881.

Appeal from circuit court, Sauk county.

J. W. Lusk, for respondent.

F. J. Lucus and Vilas & Bryant, for appellant.

TAYLOR, J.

This action was brought by the respondent to recover damages for an alleged injury to his person, caused by the negligence of the appellant or its servants. The only errors assigned by the appellant are that the allegations of the complaint were not sufficiently specific to authorize the admission of certain evidence tending to show that certain effects were the result of the injury complained of, and that the damages are excessive. The complaint, after alleging that the plaintiff was a fireman upon one of the locomotive-engines of the defendant, and charging that the defendant and its employes negligently and carelessly permitted a car loaded with iron to remain on the main track, by reason whereof the engine upon which he was employed ran into it, and was thrown from the track, states the injury to the plaintiff as follows: “And the said engine was thrown from the track, tipped over, and large quantities of steam and water escaped therefrom and fell upon the plaintiff, and the said plaintiff was severely burned, maimed, and permanently injured, and has suffered and has continued to suffer great pain in body and mind; that by reason thereof the plaintiff became and for a long time remained ill, and is still suffering from said injuries so received as aforesaid.”

Upon the trial the plaintiff was permitted to show under objection that the covering of the spinal cord was injured by the accident, and that urinal difficulty resulted from his injuries, and to give evidence that an inguinal hernia made its appearance about nine months after the injury, and other evidence tending to show that such hernia was the result thereof. It is insisted by the learned counsel for the appellant that no evidence of these alleged results of the injury should have been received under the general allegations of the complaint; that, in order to permit the plaintiff to give evidence of such results, he should have set them out particularly in his complaint. It is not very strenuously insisted by the learned counsel for the appellant that, under the general allegations of injury set out in the complaint, the plaintiff might not properly be permitted to show such injuries to his person as were immediately apparent, and that, consequently, the injury to the spinal cord and the urinal difficulties might be proved; but they very earnestly insist that the evidence of the appearance of the hernia nine months after the accident, and the attempt to show that it was caused thereby, should have been excluded as too remote, and not the natural, ordinary or necessary result of the original injury; and not such an effect as the defendant could anticipate would or might result therefrom, and he could not, therefore, come to the trial prepared to meet the evidence of the plaintiff upon that question.

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 Burchard v. Booth, 4 Wis. 74. 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 cannot 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...