MacGregor v. Rhode Island Co.

• Decision Date: 15 March 1905
• Citation: 27 R.I. 85,60 A. 761
• Parties: MacGREGOR v. RHODE ISLAND CO.
• Court: Rhode Island Supreme Court

60 A. 761

27 R.I. 85

MacGREGOR

v. RHODE ISLAND CO.

Supreme Court of Rhode Island.

March 15, 1905.

Action by Emma R. MacGregor against the Rhode Island Company. On defendant's motion for a new trial. Motion granted on issue of damages.

Argued before DOUGLAS, C. J., and DUBOIS and BLODGETT, JJ.

David S. Baker and Lewis A. Waterman, for plaintiff. Henry W. Hayes, Frank T. Easton, Lefferts S. Hoffman, and Alonzo R. Williams, for defendant.

BLODGETT, J. The defendant's exception that the verdict is contrary to the evidence must be overruled. The liability of the defendant is clearly established by the testimony, and the only questions remaining for consideration are questions relating to damages.

1. The declaration contains no averment of permanent injury, and, while such an averment is not required when it appears from the nature of the injury that permanent in-capacity must inevitably result, yet the rules of good pleading require such an averment when the injuries complained of are not necessarily permanent in their nature. Thus, in 1 Chitty, Pl. (16th Am. Ed.) § 411, the rule is thus stated: "Whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent the surprise on the defendant which might otherwise ensue on the trial, the plaintiff must in general state the particular damage which he has sustained, or he will not be permitted to give evidence of it." This is but an amplification of the familiar rule of pleading that special damages must be specially averred. In the case of an injury resulting, for example, in the loss of a limb or of an eye, it is obvious that the element of permanency is necessarily implied in the very description of the injury, and consequently an averment to that effect is not requisite. But there are many injuries, the description of which shows that their permanence is merely probable, as well as many other injuries where permanence is more doubtful and more improbable, but nevertheless is within the bounds of possibility. We think it is no hardship to require a plaintiff in such cases to aver permanence, if he wishes to offer evidence of it. And see Watson on Damages for Personal Injuries, § 305. In the case at bar the accident complained of was a severe shock or jolt to the plaintiff while a passenger seated in the car, not resulting in any broken bones or in the loss of any limb or organ, and causing pain and suffering to the date of suit. The declaration contains the averment that "for a long time to come she will continue to suffer like pain and nervous shock, and will ho unable to earn any wages or income," etc. A careful consideration of the medical testimony offered by the plaintiff, and construed most favorably in her behalf, shows that there is no evidence that the injuries complained of will be permanent, since no one of them testifies that their permanence is even probable. Their utmost claim is that under certain conditions her injuries may last indefinitely. Thus the testimony of Dr. Eccieston, who attended the plaintiff from the month of August succeeding the accident until within a week of the trial, and who was called as a witness on her behalf, is as follows on the question of the permanency of her injuries: "Q. 29. Has she improved? A. I think she has. Q. 30. How much? A. Well, I think there is a perceptible improvement. Q. 31. Judging from her condition, how long do you think this trouble may last? A. Under the most favorable conditions, I should think that it would be a question of probably eighteen to twenty-four months. Q. 32. Under the most favorable conditions? A. Yes. Q. 33. And under ordinary circumstances how long do you think it would last? A. No man knows. Q. 34. How long may it last? A. It might last indefinitely."

2. In Strohm v. N. Y., L. E. & W. R. Co., 96 N. Y. 300, the Court of Appeals of New York thus defines the rule: "Future consequences which are reasonably to be expected to follow an injury may be given in evidence for the purpose of enhancing the damages to be awarded. But to entitle such apprehended consequences to be considered by the jury, they must be such as in the ordinary course of nature are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the...