Lane v. Southern Ry. Co.

• Decision Date: 13 October 1926
• Docket Number: 91.
• Citation: 134 S.E. 855,192 N.C. 287
• Parties: LANE v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

134 S.E. 855

192 N.C. 287

LANE v. SOUTHERN RY. CO.

No. 91.

Supreme Court of North Carolina

October 13, 1926

Appeal from Superior Court, Wayne County; Sinclair, Judge.

Action by Otis Lane against the Southern Railway Company. From judgment for plaintiff, defendant appeals. No error.

Action to recover damages for personal injuries. Plaintiff alleges that his injuries were caused by the negligence of defendant in that defendant negligently failed to furnish him a safe place at which to alight from defendant's train, on which he had been riding as a passenger, and also a safe place along which to walk, after he had alighted from said train to defendant's station. Defendant denies the allegations of negligence, and pleads in bar of plaintiff's recovery his contributory negligence. Defendant alleges that plaintiff had a weak knee at the time, and that, with knowledge of this fact, plaintiff carelessly and negligently walked alongside its moving train; that, while thus walking, plaintiff because of his weak knee, fell towards the moving train, with the result that he was injured.

The evidence for the plaintiff tended to show the facts to be as follows: On the night of August 17, 1924, plaintiff was a passenger from Pine Level to Selma, on defendant's west-bound train, from Goldsboro to Greensboro, N.C. This train arrived at Selma at about 11 p. m. When the train was stopped for the discharge of passengers at Selma, the car in which plaintiff was riding stood 40 to 50 yards east of the Union Station, which is located on the west side of the Atlantic Coast Line track, running north and south, at its intersection with defendant's track, running east and west. The station is immediately to the north of defendant's track. Plaintiff, with other passengers for Selma, left the car, and began to walk beside the train on the north side of defendant's track toward the Union Station. Plaintiff knew the physical conditions beside defendant's track from the place at which he left the car to the station. There was a ditch, as plaintiff well knew, just off the walkway provided for passengers extending toward the station. There were lights at the station, but none at the point where plaintiff was required to alight, and none on the walkway on which he was required to walk toward the station. It was dark, and plaintiff could not see the ditch or the ground on which he was walking. He was the last passenger to leave the car. Soon thereafter the train began to move, and plaintiff, walking in the darkness, with knowledge that there was a ditch just off the walkway, stumbled and fell toward the moving train. His left hand struck the iron rail of defendant's track, and was cut off by the wheels under the cars of the moving train.

Defendant offered evidence tending to show that plaintiff left the car in which he had been riding as a passenger at the usual place at which passengers for Selma alighted; that the walkway to the station was constructed of dirt and crushed stone, and was hard and level; that the lights from the station and from the cars were sufficient to enable plaintiff to see the ground upon which he was walking and the moving train; and that plaintiff had wrenched his knee some time prior thereto; and that it was then weak, causing him to stumble and fall while walking toward the station.

The issues submitted to the jury were answered as follows:

(1) Was the plaintiff, Otis Lane, injured by the negligence of defendant, Southern Railway Company, as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff, Otis Lane, by his own negligence contribute to his injury as alleged in the answer? Answer: No.

(3) What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $15,000.

From the judgment upon this verdict, defendant appealed.

Langston, Allen & Taylor, of Goldsboro, for appellant.

Dickinson & Freeman, of Goldsboro, for appellee.

CONNOR J.

Plaintiff, testifying as a witness in his own behalf, exhibited to the jury his left hand. All of the hand, except the thumb and index finger, had been cut off. He had testified that this was the result of the injury which he had sustained when he stumbled and fell while walking, in the dark, on the unlighted walkway provided by defendant for passengers beside its moving train toward the Union Station. His hand had struck against the track, and had been crushed by the wheels under the train. Immediately after the injury, plaintiff was taken to the local surgeon of defendant for treatment. This local surgeon took plaintiff to the hospital at Smithfield, N. C., where his wounded had was treated. Two of his fingers had been cut off at the time of the injury; the little finger was cut off by the surgeon at the Smithfield Hospital. After remaining at the Smithfield Hospital for ten days, plaintiff, who was a soldier in the United States army, went to the hospital at Ft. Bragg, near Fayetteville, N. C., where his injured hand was again treated.

Plaintiff testified as follows:

"Just as soon as I got there, they took the scissors and cut the dead skin off, and grafted some skin from my side. They took the skin off my side twice, and it took 59 stitches to sew it up. The skin on my hand as grafted isn't as tough as the other. It is just as easy to skin as can be. When it is skinned, it does not heal up so easily. It takes a long time to heal up. Some skin was grafted also from my thigh at a different time from the grafting from my side. I suffered bad pain at the time of and after the injury, and an account of the injury. I also suffer now. Every time I work any it hurts. Every time I go to work now, something in my eye draws it to one side. The pain comes in my right side, once in a while, and hurts at the point where the grafted skin was taken off."

In apt time defendant objected to all the testimony relative to the grafting of skin from plaintiff's side and thigh, and to the pain caused thereby, and assigns as error the refusal of the court to sustain these objections. Defendant contends that such testimony should have been excluded, for that in no event can it be liable for damages resulting from the grafting of skin by a surgeon upon plaintiff's body, at least in the absence of evidence that this was a necessary or proper treatment of the injury to plaintiff's hand; that such damages were not caused by any act of defendant.

The broad general rule, with respect to compensatory damages, which are given as the pecuniary equivalent for the injury done, is that the wrongdoer is liable to the person injured for all the natural and direct or proximate consequences of his wrongful act or omission. Subject to certain qualifications and exceptions, not applicable to the instant case, he is liable only for such consequences. This rule is applicable in cases both of contract and of tort. 17 C.J. 728. In the case of torts, the general rule is that the wrongdoer is liable for any injury which is the natural and probable consequence of his misconduct. Such liability extends, not only to injuries which are directly and immediately caused by his act, but also to such consequential injuries, as, according to the common experience of men, are likely to result from such act. 17 C.J. 750.

Where an intervening act of a third party, not connected with or related to, but independent of, the act or omission of the wrongdoer, results in damages, distinct from the damages resulting from the first wrongful act or omission, the original wrongdoer cannot be held liable for such additional or increased damages; but where such intervening act, whether wrongful in itself or not, is made necessary or proper because of the act of the wrongdoer, he is liable for the additional or increased damages resulting therefrom upon the principle that such damages are the natural and probable consequences of his act. Balcum v. Johnson, 177 N.C. 213, 98 S.E. 532, and cases cited. It is uniformly held to be the duty of one who has suffered a personal injury by the negligence of another to exercise due care to mitigate the damages by having his injury treated by a physician or surgeon, if the nature of the injury is such as reasonably to require medical treatment or a surgical operation. See Brewington v. Loughran, 183 N.C. 558, 112 S.E. 257, 28 A. L. R. 1543, for statement by Stacy, J., of the principle as applicable to damages recoverable for breach of covenant in a rental contract. Johnson v. Atlantic Coast Line R. Co., 184 N.C. 101, 113 S.E. 606, 25 A. L. R. 910, and cases cited. If the injured person exercises due care to have the injury properly treated, the result of the treatment, if not beneficial, cannot affect the damages, which he would otherwise be entitled to recover of the wrongdoer, by whose wrongful act he was injured. If the treatment of the injury, procured by the injured party, in the exercise of due care, is beneficial, and reduces the damages resulting from the act or omission of the wrongdoer, such reduction relieves the wrongdoer pro tanto. If such treatment is not beneficial, and results in increased or additional damages, the wrongdoer whose act or omission made the treatment necessary or proper must be held liable for such additional or increased damages.

An application of these principles to the facts presented by defendant's assignments of error leads to the conclusion that they cannot be sustained.

In Sears v. Atlantic Coast Line R. Co., 169 N.C. 446 86 S.E. 176, it is held that, where there is some evidence that as the result of a personal injury, which was alleged to have been negligently inflicted by the defendant on its employee, two surgical operations were performed, and that the second one was made necessary by reason of the defendant's negligence, and as a...