Wilson v. N. Pac. Ry. Co.

• Decision Date: 12 May 1915
• Citation: 153 N.W. 429,30 N.D. 456
• Parties: WILSON v. NORTHERN PAC. RY. CO.
• Court: North Dakota Supreme Court

30 N.D. 456

153 N.W. 429

WILSON

v.NORTHERN PAC. RY. CO.

Supreme Court of North Dakota.

May 12, 1915.

Syllabus by the Court.

In a personal injury action the jury returned the following verdict: “We, the jury in the above entitled action, find for the plaintiff and against the defendant and assess the damages in the sum of $2,400; $109.25 doctor bill, 7 per cent. interest on damages from October 4, 1912, to date.” At the request of the plaintiff the court entered judgment allowing interest merely on the $2,400 item. Held, that the uncertainty of the verdict, if any, is no ground for the reversal of the judgment.

In a tort action damages can be recovered for injuries which proximately follow from the wrongful act, whether such injuries were or could have been anticipated or not.

An act is negligent and furnishes the foundation for an action in tort if the same is forbidden by law, or the person doing it might reasonably anticipate that it might be injurious to some one. It is not necessary, however, that that some one should be the person who is actually injured.

For a breach of an obligation not arising from contract, and except when otherwise providedby the Code of North Dakota, the measure of damages is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not. See section 7165, Comp. Laws 1913.

Where a prairie fire is negligently caused by a railway company, and the wife of a homesteader who is left at home alone with her young daughter uses every reasonable effort to put out such fire, and in doing so overworks and strains herself so that permanent injuries ensue, she can recover damages from such company therefor, provided that she did not unreasonably and recklessly expose herself to such injury. Whether she was reckless and negligent in this respect is primarily a question of fact for the jury and not of law for the court to pass upon.

Where the record on appeal contains no exceptions to the instructions of the jury and omits such instructions entirely, the presumption will be that the jury was properly instructed on all of the phases of the case.

It is not necessary, in order that a married woman may recover damages for injuries sustained in an attempt to stop a prairie fire, which threatens her home, that such woman should own the fee of the property, and the fact that she has merely a homestead interest in the same is no bar to her recovery.

Though as a rule damages which are occasioned by fright alone cannot be recovered in a tort action without proof of a physical injury, the mere fact that a person may have been frightened by fire, and that such fright may have had some influence in inducing her to fight against it, does not preclude a recovery for injury sustained in such attempt, where the exertion put forth was the exertion that a reasonably prudent person would have put forth under like circumstances.

Where a tort has been committed it is the duty of the injured party to use reasonable efforts to avoid the consequences thereof and to reduce the damages sustained thereby, and if in such reasonable attempt he is injured, damages may be recovered therefor.

The questions of negligence and of contributory negligence are primarily questions of fact for the jury to pass upon.

Where a part of an answer is responsive and a defendant objects to the whole answer as being not responsive and moves to have the same stricken out, the verdict will not be set aside because of the failure of the court to so order.

Various objections to rulings on the introduction of the testimony examined, and held not to constitute reversible error.

Appeal from District Court, Stutsman County; Coffey, Judge.

Action by Magdalena Wilson against the Northern Pacific Railway Company, a corporation. From judgment for plaintiff, defendant appeals. Affirmed.

Watson & Young and E. T. Conmy, all of Fargo, for appellant. Knauf & Knauf, of Jamestown, for respondent.

BRUCE, J.

The complaint in this action alleges that the defendant company negligently started a prairie fire, and that-

“for the purpose of protecting her said property and buildings this plaintiff, then aged 52 years, worked in a diligent and proper manner to protect said property, and in such a manner as an ordinarily prudent and diligent person and woman would have done, and did carry out from said house and on plowed ground and on safe premises bedding, clothes, and furniture, and did then and there carry water and assist in preventing said fire from burning up said grain, hay, buildings, house, and property as any woman in the exercise of due diligence, prudence, and care should do in aiding to protect the same under such threatened destruction, and while in the exercise of due care in the premises aforesaid this plaintiff became so greatly heated, exercised, and excited, and so greatly worked as to cause her immediately thereafter to be sick, sore, and lame, and to become permanently injured in her back, head, mind, limbs, body, and nerves, rendering her thereby permanently sick, sore, lame, and a nervous wreck, to her damage in the sum of $2,500, and a necessary cost for physicians' and surgeons' service, and medicines, board, care, and railroad fare expense in the further sum of $500.”

Both at the conclusion of the plaintiff's case and of that of the defendant, the defendant moved the court to direct a verdict in its favor on the following grounds:

“First, there is no testimony in this case to show that this defendant is guilty of any negligence which proximately caused the injury to the plaintiff here; and, secondly, the undisputed testimony shows that if this plaintiff suffered any injury, it was caused by her own negligence, and her own negligence contributed thereto; thirdly, the undisputed testimony shows that the injury to this plaintiff, if any, was occasioned by and is the direct result of fright or fear, unaccompanied by any physical injuries whatsoever, and the negligence of this defendant, if any, is not the proximate cause thereof, and this plaintiff cannot recover; the damages being too remote and speculative.”

These motions were denied. The jury returned a verdict in favor of the plaintiff, and the defendant has appealed.

The principal questions to be determined are: (1) Whether a married woman, who attempts to protect the family property and homestead against a prairie fire which is negligently started, may recover damages against the wrongdoer for injuries which arise from her overexertion in such attempt; (2) whether there is any competent proof in the record that the defendant was guilty of any negligence which proximately caused the injury. There are also several minor exceptions to the rulings upon the evidence, which will be considered later. There is also to be determined in this case, and preliminary thereto, the fact as to whether there is any evidence that the plaintiff suffered any physical injury other than that which was resultant upon the fright. It is also claimed that the court erred in accepting and receiving the verdict of the jury without requiring them and instructing them to correct it, it being claimed that the verdict was uncertain, informal, and insufficient, the verdict being as follows:

“We, the jury in the above entitled action, find for the plaintiff and against the defendant, and assess the damages in the sum of twenty-four hundred dollars ($2,400.00); one hundred nine and twenty-five hundredths dollars, doctor bill, 7 per cent. interest on damages from October 4, 1912, to date.”

[1] We see no merit in the objection to the verdict of the jury. It is claimed that it is uncertain as to whether the interest should be computed on the verdict as a whole, that is, on the $2,400, plus the $109.25 doctor's bill, or on the sum of $2,400 alone. The record shows that on motion of the plaintiff interest was only allowed by the court in the final judgment on the sum of $2,400. This the jury certainly intended. Whether they intended that there should also be interest allowed on the doctor's bill is immaterial here. We very much doubt if the verdict was in any way uncertain. Even if it was uncertain, plaintiff has no ground for complaint.

[2][3] We next come to the point that the negligence of the defendant in starting the fire, if negligence there was-

“was not the proximate cause of the injury nor could it reasonably anticipate the results of said negligence.”

The defendant's position is stated in its brief as follows:

“We will concede, for the sake of the argument, that this defendant railroad negligently set the fire which burned over to the land of plaintiff's husband and burned some of his property. There is no question but that, under such circumstances, the defendant would be liable to Mr. Wilson for the value of his property destroyed, and also for the value of his time, or that of his wife, spent in fighting the fire so set. The defendant, we think, must anticipate that people would get out and fight fire which was threatening to destroy their property. In fact, we believe a great many authorities hold that it is their duty to exercise ordinary care to prevent the spread of such fires and the destruction of their property by such fires. But this defendant is not bound to anticipate, and could not reasonably anticipate, that one would be so foolish as to get out and injure himself permanently in the fighting of a prairie fire of this kind. And it certainly could not anticipate that a strong, healthy woman, such as this plaintiff claims to have been before the fire, would so work or so conduct herself as to permanently impair her health. Nor could this defendant reasonably anticipate that the setting of a prairie fire of this kind would cause a person to become so frightened and scared as to injure her nervous system permanently. This is especially applicable when we consider that the fire in question was a small fire, and was put out by...