Rogers v. Portland Ry., Light & Power Co.

Damages — Complaint—Sufficiency of Allegations — "Traumatic Neurasthenia.” 1. Where the complaint, in an action against a street railway company for personal injuries, alleged that plaintiff’s “nervous system was permanently shattered,” this was a sufficient averment that she was suffering from “traumatic neurasthenia,” which means a condition of nervous prostration resulting from a wound, to admit evidence by a physician that she was suffering from such disease. Trial — Objection to Evidence — Hypothetical Question, 2. An objection to a hypothetical question, involving several distinct propositions or conditions, that one of such conditions is not supported by testimony previously introduced should be specific, so that the attention of the court and counsel can be called to the exact defect. Street Railroads — Injury—Contributory Negligence — Instructions. 3. In an action against a street railway company for an injury caused by a street-car colliding with the automobile in which plaintiff was riding as a guest with no control over the driver, an instruction as to the contributory negligence of plaintiff was without evidence to sustain it. [As to accidents to 'automobiles at railroad crossings, see note in Ann. Cas. 1913B, 680.]

From Multnomah: Henry E. McGinn, Judge. Department 1. Statement by Mr. Chief Justice McBride. This is an action by Mabel Rogers against the Portland Railway, Light & Power Company to recover damages for personal injuries. The complaint alleged, in substance: That the defendant is a street railway company, operating under a certain ordinance of the City of Portland; that on June 23, 1911, plaintiff was riding in an automobile, at the invitation of W. J. Guy, the driver and owner thereof, and that, while so riding upon a public street of the city, the defendant, through its agents and servánts, so recklessly, carelessly and negligently operated its car as to cause it to strike and collide with the automobile in which plaintiff was riding, whereby she sustained certain injuries, particularly set forth, without any fault on her part or of the driver of the automobile; that defendant was negligent in that it was then operating the car on a downgrade of 5 per cent without having the car under proper control and at a rate of speed prohibited by the city ordinances, to wit, at a speed greatly in excess of 12 miles an hour; that defendant failed to sound any alarm or other warning of the approach of its car; that it failed to stop the car after the motorman in charge thereof saw, or with the exercise of reasonable prudence, care, and caution might have seen, the automobile upon or near the track ahead of the car, there being ample time within which to stop the car and to prevent a collision; that, by reason of and as a direct and approximate result of said negligent acts of defendant, plaintiff had endured great pain, suffering, and mental anguish; that her nervous system is permanently shattered; and that she is seriously and permanently injured about her head, body and limbs and is permanently scarred and disfigured. The defendant answered, denying the allegations of negligence, and alleging carelessness and negligence on the part of Guy, the driver of the automobile. There was also a further defense, the substance of which is' as follows: That on June 23, 1911, plaintiff was riding in an automobile which was then and there being driven by one W. J. Guy; that said plaintiff was seated in said automobile in easy speaking distance of the driver thereof, and there was nothing to prevent free and easy communication between them; that at the time of the accident referred to in plaintiff’s complaint, and as one of the defendant’s cars was being operated in a prudent manner in a southerly direction along said Union Avenue, and somewhere in the vicinity of its intersection with Prescott Street, the said driver of said automobile, W. J. Guy, as the plaintiff then and there well knew, carelessly and negligently, and without looking or listening for approaching cars, or exercising any or proper care or precaution, suddenly and unexpectedly, and without previous notice or warning, drove said automobile at a high and dangerous rate of speed in a westerly direction along said Prescott Street out upon said Union Avenue and directly and immediately in front of and into said south-bound car; that said plaintiff at and prior to the happening of said accident carelessly and negligently failed to keep any or a proper lookout on her own account for any approaching cars, and carelessly and negligently failed to exercise any or proper care or precaution for her own safety, and carelessly and negligently, and without looking or listening, and without remonstrating with the driver of said automobile or requesting him to delay or turn aside, suffered and permitted said automobile to be driven out upon said track as aforesaid; that said accident and any injury which plaintiff may have sustained thereby resulted from the plaintiff’s own negligence and want of care, and happened without any negligence on the part of the defendant or any of its agents or servants in charge of its said car. On the trial the court permitted J. H. Bristow, a medical witness, to testify that plaintiff, by reason of the injuries she sustained, was suffering from traumatic neurasthenia. This testimony was objected to by defendant as not being within the issues made by the pleadings, and its admission is here assigned as error. Substantially the following hypothetical question was asked Dr. Bristow and Dr. House: “Well, now, Doctor, I will put this hypothetical question to you: Now, Doctor, assuming that she (the plaintiff), a woman 31 years of age, a waitress by occupation, who has never been ill since the age of 12 years, who has worked steadily for a number of years, and who has been able to earn from $10 to $15 a week, who, on the 23d day of June, 1911, while riding in an automobile, was struck by a street-car, was thrown out and dragged some feet, and whose arms and limbs were scratched and bruised, and who was generally shaken up, who at the time was exceedingly frightened and was not rendered unconscious, and who soon raised to her feet and was able to wash the blood off her arm, who then went home on a street-car and within an hour commenced to work at her business, waiting table, and was soon taken sick at the stomach and forced to quit work, and thereafter remained in bed for a week or ten days, and who since that time has suffered all, or most all, of the time from a feeling of extreme nervousness, who formerly weighed 117 pounds, and who now weighs 100 pounds and 8 ounces, who weighed on the 12th day of April 103 pounds, whose height is 5 feet, does not sleep well at night, but who awakes from her sleep, startles, who suffers much from pain in the back of her head, who has much headache, which is described as neurasthenia (I will eliminate that), who is sore on one hip, who says that being so nervous is what worries her most, who for the last year — who since the 23d day of June, 1911, has been unable to work, except at certain periods, and then but temporarily, who has been forced to quit her work on several occasions since said accident because of her nervous condition, who has never been afflicted with anything of this sort before her injury on the 23d of June, 1911, who cries easily, whose head has a sensation of being thrown out, and who finds it hard to straighten her head, now, assuming these to be the facts, what would you diagnose the condition of this lady to be?” To this question objection was made on the ground that the question covered symptoms and facts which had not been disclosed by the evidence in the case. Other alleged errors and objections are noted in the opinion. The plaintiff had a verdict and defendant appeals.