Denver City Tramway Co. v. Gawley

• Decision Date: 16 December 1912
• Citation: 23 Colo.App. 332,129 P. 258
• Parties: DENVER CITY TRAMWAY CO. v. GAWLEY.
• Court: Colorado Court of Appeals

129 P. 258

23 Colo.App. 332

DENVER CITY TRAMWAY CO. v. GAWLEY.

Court of Appeals of Colorado

December 16, 1912

Appeal from District Court, City and County of Denver; Harry C Riddle, Judge.

Action by Sarah A. Gawley against the Denver City Tramway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Gerald Hughes, Howard S. Robertson, and Frederick P. Smith, all of Denver, for appellant.

George F. Dunklee and O.E. Jackson, both of Denver, for appellee.

MORGAN, J.

Mrs Gawley was injured in a collision while a passenger on one of appellant's street cars in Denver, in August, 1908, and in an action for personal injuries, obtained a judgment in the district court against the appellant for $1,000 October 7, 1909. In this appeal from the judgment, appellant contends that the lower court erred in the admission and in the exclusion of evidence, and in the giving and in the refusal of instructions. Appellant's negligence is conceded, and the assignments of error are extremely technical.

Appellant argues that, as the plaintiff alleged injuries to only certain parts of the body, no recovery could be had for injuries to any other part, unless it were shown that such latter injuries were due to the former. The complaint states "That, by reason of said collision, said car in which the plaintiff was a passenger was badly wrecked and damaged, and the plaintiff, without any fault or negligence on her part, and while in the exercise of due care and caution, was by the said negligence of the defendant violently thrown from her seat and was then and there bruised, mangled, and wounded by the framework of the seat and other parts of said car, whereby her first finger on her right hand was severely cut and wounded, her left arm was wounded and bruised from the shoulder to the wrist, she received a severe blow and bruise upon the back of her head, and severe wounds and bruises on her back, left hip, outside of the right ankle, and outside of the right knee, and her mouth and left eye were cut and bruised, and by reason whereof she was permanently injured in her back, spine, left hip, and her nervous system, in a way and manner which she is unable to more definitely state, and by reason of said injuries she has ever since been unable to carry on her household duties, and has suffered great pain and mental anguish. That all of said losses and injuries have resulted from the aforesaid wrongful acts on the part of the defendant."

The appellant says that, under the foregoing allegations, it was error to permit a physician to testify, on plaintiff's behalf, that the condition of her spine and back, at the time of the trial, was the result of the injuries received in the collision; that he believed the injuries were permanent, because such proof did not correspond with the allegations of the complaint; that such evidence should have been confined to the specific injuries enumerated therein; that any evidence as to the injury to the spine and back was inadmissible unless it was shown that the same were due to some one or all of the specific injuries alleged; that no testimony as to any permanent injury to the spine and back, left hip, or nervous system should have been admitted, because there was no testimony that such injuries were caused by the specific injuries set out in the complaint. The contention is that such evidence was outside of the complaint and was a "broadening of the issues," and that plaintiff should have been restricted to the injuries alleged. There is no rule of law more firmly settled than that which requires the proof to correspond with, and be confined and restricted to, the allegations in the pleadings, but that rule was not violated in the pending case, but was substantially followed. The principal contention is that the testimony concerning the permanent injury to the spine and back and nervous system should have been excluded, because it was not shown by the testimony that the latter permanent injuries were the direct result of the specific injuries alleged to have been received on the arm, leg, back, left hip, mouth, and back of the head. The testimony, however, discloses many facts tending to prove that such permanent injuries were due to the specific injuries alleged. Plaintiff testified to all the specific injuries, and in her testimony stated that the bones at the back of her head were hurt; that she was badly bruised in the back; that the plate in which she had a few artificial teeth was broken by the blow on the back of her head, thereby causing her mouth to be filled with blood; that she could not sleep for two or three months on account of the pain in her head; that the physician treated her head for two or three months; that she was not able to do any work except light work until the latter part of January, 1909; that she suffered from injuries to her head, back, and left side; that her hip continued to burn at times, especially on damp days; that she never slept much, lost her appetite, had no ambition to do anything; that sound almost made her cry; that she could not stand any noise or excitement of any kind, and never had any nervous prostration before that time. Her daughter also testified as to her nervousness. Her physician testified to all the injuries, and in his testimony stated that the posterior part of the pelvic frame was considerably bruised; that there were contusions on the lower part of the spinal column, the lumbar, and sacral parts; that she had complained of injury in that locality more or less up to the time of the trial; that when she got up out of bed in January, 1909, she was suffering from neurasthenia; and that such trouble may be caused by such injuries. He stated that there were no injuries from which she would not recover, except the injury to the spinal column, which he said might continue to give her more or less trouble, and added "the nervous system, of course." He stated that he expected no improvement in the nervous condition at all, and that the injury to the nervous system would probably continue. Another physician testified, on behalf of defendant, that the plaintiff was suffering at the time he examined her, 13 months after the accident, with a nervous condition, a mild type of neurasthenia.

In the admission and exclusion of testimony and also in the instructions, the court considered all the contentions of counsel for defendant, and restricted the testimony and the instructions in such a way as to substantially confine the issues to the allegations of the complaint. The testimony of the plaintiff's physician as to the condition of the back and the spine at the time of the trial was fairly within the allegations of the complaint, and his testimony as to the permanency of the injuries to the spine, back, and nervous system was sufficient to show that such permanent injury was due to some one or more of the specific injuries alleged; hence there was no error committed by the court in the admission of the testimony complained of. There are a number of cases in which the courts have held that the evidence introduced constituted a material departure from the allegations of the complaint and did not correspond therewith, but we have not found any case that goes so far in such direction as counsel contend for here. In the case of D. & R.G.R. Co. v. Buffehr, 30 Colo. 27, 69 P. 582, relied upon by appellant, the acts of negligence alleged were that no warning was given of the approach of the train, and that its speed was greater than a certain ordinance permitted, while the testimony admitted was that the engineer did not see the injured person and did not keep a lookout in front of his engine. It is clear to the legal mind that the evidence of negligence proved did not correspond with the acts of negligence alleged, but even in that case the court held that the variance between the pleadings and the proof did not require a reversal, on account of the fact, however, that the case was tried regardless of the defect. Counsel in the pending case have raised sufficient objections at the trial, and saved their exceptions, and if there were any substantial variance between the pleadings and proof, or any material departure in the proof from the allegations in the complaint, this court would be justified in reversing the case; but, as heretofore stated, there was no such variance or departure. In a later case (Denver Tramway Co. v. Cowan, 51 Colo. 64, 76, 116 P. 136, 140) our Supreme Court had under consideration a similar question, wherein the plaintiff was permitted to testify that the sartorius muscle was sore from the effects of the injury, and a physician was permitted to testify that pleurisy developed as a result of the injuries occasioned by the accident; and it was argued that the evidence was not admissible under the pleadings, and under a certain bill of particulars, as the complaint only alleged that "the neck of the right femur of the plaintiff was broken and the flesh, muscles, and tissues surrounding the same were very greatly injured, lacerated, and torn, and the body of this plaintiff was severely bruised, beaten, and wounded," and the bill of particulars only described certain "bones broken and wrenched, muscles and tissues lacerated and torn," but did not designate the sartorius muscle, and did not mention nor include pleurisy; but the court held that a general allegation of injury or sickness, as an element of injury resulting from an accident, was sufficient to let in proof of the character under consideration. And in the case of D. & R.G.R. Co. v. Mitchell, 42 Colo. 43, 48, 94 P. 289, 291, our Supreme Court had under consideration an instance wherein the court permitted the the plaintiff to testify as to injuries...