Walsh v. Richmond Light & Railroad — 124 A.D. 533

Majority

p. 533

Charlotte W. M. Walsh, Respondent, v. Richmond Light and Railroad Company, Appellant.

Second Department,

February 28, 1908.

Headnote

Pleading — proof admissible under general allegations of injury — railroad — injury, to passenger — evidence — known danger not created by defendant. .

Where the complaint in an action to recover for personal injuries specifically enumerates certain injuries, it excludes all others unless, in addition, it alleges injuries in general terms. Thus, where the plaintiff alleges specific injuries and injuries to “ other parts of her body,” she may give evidence of derangements of and blood clots in the uterus and dizziness, though the parts affected were not specified.

In an action to recover for personal in j urics received by a passenger who, on alighting from a surface car which went beyond the street crossing before stopping, stepped into an open trench, it is not error to exclude evidence that the trench was not dug by the defendant if it is admitted that the defendant’s employees know of its location.

As the employees knew the trench was there, the duty of care in respect to it was the same as though the defendant had dug it.

Appeal by the defendant, the Richmond Light and Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 17th day of May, 1907, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the

p. 534

13tli day of June, 1907, denying the defendant^ motion for a new trial made upon the minutes.

This is an action for damages for negligence by a street- car company. The injuries are alleged by the complaint as follows : -

“ Plaintiff was greatly bruised, wounded and injured in her eyes, head, spine, side, back, shoulders, heart, arms and other parts of her body, and her nervous system was greatly shocked, from which injuries she became and continues to be sick, sore, lame and disordered, and suffered and still suffers great pain and distress; that by reason thereof she lost ten pounds in weight withip the period of two weeks thereafter, and was unable to sleep on account of the pains; that progressive deterioration of her eyesight developed therefrom and continued, and that said injury to her eyes is, as she is informed and believes, permanent.”

John J. Kenney [Frcmh H. Innes with him on the' brief], for the appellant. • "

Frank W. Hubby, Jr., for the respondent.

The car was - stopped on the plaintiff’s request to let her off., Instead of stopping at the crossing, it went beyond. There was á trench alongside the track five or six feet deep and about three feet wide. ■ It had been dug about a week before. At the crossing the trench was boarded over. It was a dark place. The plaintiff stepped from the car step right into the trench and fell to the bottom of it.

The principal point of the appellant is that it was error to permit the plaintiff to prove derangement of and blood clots in the uterus and . dizziness as caused. by the accident, on the ground that they were not embraced in the complaint. But the complaint not only specifies several parts of the body in which the plaintiff was injured, but adds the general and comprehensive phrase, “ and other parts of her body”. Where a'complaint specifically enumerates certain injuries only, it excludes all other injuries, but when instead of so limiting it alleges injuries in general terms it includes all injuries. The complaint here by its general allegation embraced all of the plaintiff’s injuries, and hence all of the consequences that would naturally ensue from them. The plaintiff had a hemorrhage of the womb

p. 535

from her injuries the night of her hurt, and it was proper to trace the injury to her womb through all of its subsequent course. And it is difficult to see why it is objected that evidence of dizziness from the injury to the head was not relevant' and material. It was •not error to exclude as immaterial evidence that the trench was not dug by the defendant but by a gas company, for without dispute the defendant’s employes knew it was there, and therefore their duty of care in respect of it was the same as though the defendant had dug it.

The judgment should be affirmed.

Present — Jenks, Hooker, G-aynór, Kich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.