Shadock v. Alpine Plank Road Co.

• Decision Date: 28 December 1889
• Citation: Shadock v. Alpine Plank Road Co., 79 Mich. 7, 44 N. W. 158 (Mich. 1889)
• Court: Michigan Supreme Court
• Parties: SHADOCK v. ALPINE PLANK-ROAD CO.

44 N.W. 158

79 Mich. 7

SHADOCK v. ALPINE PLANK-ROAD CO.

Supreme Court of Michigan

December 28, 1889

Error to circuit court, Kent county; WILLIAM E. GOVE, Judge.

Maher & Frelker, for plaintiff in error.

Smedley & Irwin, for defendant in error.

CAMPBELL J.

This suit is one to recover for personal injuries alleged to have been caused by plaintiff's fall from his wagon at a place on defendant's gravel road where a log had been left in the way, whereby the wagon was jolted so that he was thrown off. The suit was not begun till within a few days of six years after the accident. The damages were alleged as the result of plaintiff's being hurt, bruised, and wounded whereby he was made sick, etc. Plaintiff's version of the affair is substantially this: That on a day in January, 1882 during the morning, he was driving a double wagon to Grand Rapids, having an ordinary box, and an additional one above it, loaded with two and a half cords of short wood. He sat on top of the load, back between the hind-wheels, with no seat but his wood. He had a bundle of hay, on which other witnesses swore he was sitting; but he said it was behind him. Other wagons were traveling near, and some ahead of him. He was going south ward, and, wishing to pass a wagon, he turned to the left or east to do so. There was a light snow of a couple of inches or thereabouts, but the snow had ceased falling. He represents that the road was crowning in the middle, and a little slippery; so that, while his fore-wheels met with no obstacle, the hind-wheels slewed to wards the easterly side of the road, and, in moving forward, passed over a log that was frozen down in the ground, and he was thrown off on that side of the wagon, and fractured his right shoulder, arm, and hand, and injured his hip. He represents the log as a round stick of oak, 8 or 10 inches in diameter, lying directly across the side of the road-way, with the end inside, of the distance of 8 feet from the center of the roadway. All of the other witnesses describe it as a round stick of cord-wood, and locate it as 8 feet or over from the center, and most of them as lying partly across the gutter. According to his statement, the road appeared smooth, and entirely safe for passing, and he did not see the log, which, according to all the testimony, had been frozen down in the same place for some time. Before the trial the attorney for defendant made a showing of a want of knowledge of the particulars of the injury, and asked for a bill of particulars, which was refused, on the ground that none was demandable in such actions. On the trial, objection was made to the proof of fractures and their consequences, as not within any allegations of the declaraton. The objection was overruled.

The court also refused to take the case from the jury. It was also ruled that the defendant was not only bound to keep 16 feet of track in good order, but was also bound to keep the rest of its entire roadway between the gutter in similar condition, and the jury were allowed to consider the manner of constructing the roadway. The jury were also directed that they should draw no prejudicial inferences from the delay to sue. Various questions of fact were left to the jury, upon which it is claimed by defendant there was no conflict of testimony.

The court was right in not ordering a bill of particulars; but this is so because such a bill is only granted where the pleading is more or less general. In an action on the case, the injury which is charged, and for the consequences of which the suit lies, must be charged with reasonable certainty, so that there can be no difficulty in knowing what to meet in the proofs. If no injury is definitely charged, the declaration is demurrable; but where a sufficiently definite showing is made to give a cause of action for direct or consequential damages no demurrer will lie, and a defendant can only be saved from surprise by confining the recovery to the causes sufficiently described. And, while no unreasonable strictness should be applied, and reasonable opportunities should be given, in a proper case, for amendment, nothing should be allowed which does not fairly in form the defendant what he is charged with.

The declaration in the present case contained nothing more specific than that plaintiff was hurt, bruised, and wounded. It gave no description of the place, or extent of these injuries. The word "hurt" is so general as to give no information. "Bruised" is more definite, but does not indicate necessarily or generally more than a temporary contusion, which may be on any part of the person and light or severe, but seldom more than temporary in effect. A wound is any injury breaking or cutting the skin, and is no more definite than the other words. On the trial neither wounds nor bruises were relied on, but the damage done was laid to fractures of shoulder, arm, and hand, and a temporary strain of the hip, not only producing temporary pain, but, as is claimed, permanent injury, and some disability. The treatment of such injuries would be different and slower than that of temporary and slight hurts. The rule found, generally stated, and recognized by several decisions of this court, is that "whenever the damages sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise of the defendant, which otherwise might 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." De Forest v. Leete, 16 Johns. 128, citing 1 Chit. Pl. 386, (4th Ed. 347;) Sedg. Dam. 24. See cases in Jac. C. Dig. p. 531, � 6263. The rule which requires special damages to be alleged would be useless, unless so alleged as to give definite information. Some liberality has been allowed in the case of assault and battery, where, if the party charged is guilty at all, he may be presumed to know...