59

that injuries continued to exist up to the time of the trial, the testimony of a physician as to the plaintiff's condition four months after the injury occurred, and even after the suit was instituted, is admissible; and the plaintiff may amend his declaration after suit brought, so as to increase the amount of damages claimed.1 Damages for the permanent and future effects of injuries necessarily resulting to the plaintiff are recoverable under the general allegation of damages in the complaint and need not be specifically averred.62

$7205. Reasonable Certainty Required for Prospective Damages. -To entitle the plaintiff in an action for damages to recover present damages for permanent and future consequences, there must be such probability of their occurring as amounts to a reasonable certainty that they may result: such damages cannot be based on speculation or hypothesis as to what may occur. 63 It is not sufficient that they are

v. Flint, 128 Mich. 156; s. c. 8 Detroit Leg. N. 571; 87 N. W. Rep. 86; Memphis &c. R. Co. v. Whitfield, 44 Miss. 466; Snook v. Anaconda, 26 Mont. 128; s. c. 66 Pac. Rep. 756; Holyoke v. Grand Trunk R. Co., 48 N. H. 541; Klein v. Jewett, 26 N. J. Eq. 474; Caldwell v. Murphy, 1 Duer (N. Y.) 233; s. c. aff'd, 11 N. Y. 416; Caniard v. Rochester City &c. R. Co., 50 Hun (N. Y.) 22; s. ce 18 N. Y. St. Rep. 692; s. c. aff'd, 121 N. Y. 661; Curtiss v. Rochester &c. R. Co., 20 Barb. (N. Y.) 282; s. c. aff'd, 18 N. Y. 534; McTague v. Dowst, 51 App. Div. (N. Y.) 206; s. c. 64 N. Y. Supp. 949; Matteson v. New York &c. R. Co., 62 Barb. (N. Y.) 364; Mosher v. Russell. 44 Hun (N. Y.) 12; Shaier v. Broadway Imp. Co., 162 N. Y. 641; s. c. 57 N. E. Rep. 1124; aff'g s. c. 22 App. Div. (N. Y.) 102; 47 N. Y. Supp. 815; McLaughlin v. Corry, 77 Pa. St. 109; Pittsburg &c. R. Co. v. Donahue, 70 Pa. St. 119; Wilson v. Pennsylvania R. Co., 132 Pa. St. 27; s. c. 18 Atl. Rep. 1087; International &c. R. Co. v. Clark, 96 Tex. 349; s. c. 72 S. W. Rep. 584; rev'g s. c. 71 S. W. Rep. 587; March v. Walker, 48 Tex. 372; Kenyon v. Mondovi, 98 Wis. 50; s. c. 73 N. W. Rep. 314; Stewart v. Ripon, 38 Wis. 584; Weisenberg v. Appleton, 26 Wis. 56.

59

Dale v. Brooklyn &c. R. Co., 1 Hun (N. Y.) 146; s. c. 3 Thomp. & C. (N. Y.) 686.

Hopkins v. Atlantic &c. R. Co., 36 N. H. 9.

01 McDonald v. Chicago &c. R. Co., 26 Iowa 124.

2 Ante, § 7159; Harvard v. Stiles, 54 Neb. 26; s. c. 74 N. W. Rep. 354; San Antonio &c. R. Co. v. Weigers, 22 Tex. Civ. App. 344; s. c. 54 S. W. Rep. 910. See Treadwell v. Whittier, 80 Cal. 574; s. c. 22 Pac. Rep. 266; Ava v. Grenawalt, 73 Ill. App. 633; Bradbury v. Benton, 69 Me. 199; Ehrgott v. Mayor, 96 N. Y. 264; Lynch v. Railroad Co., 13 N. Y. Supp. 236; Rosevelt v. Railway Co., 13 N. Y. Supp. 598; Railway Co. v. Goldman (Tex. Civ. App.), 51 S. W. Rep. 275; Railway v. Harris, 122 U. S. 597; s. c. 30 L. ed. 1146; 7 Sup. Ct. Rep. 1286.

69

Fry v. Dubuque &c. R. Co., 45 Iowa 416; Curtis v. McNair, 173 Mo. 270; s. c. 73 S. W. Rep. 167; Chicago &c. R. Co. v. McDowell, 66 Neb. 170; s. c. 92 N. W. Rep. 121; Feeney v. Long Island R. Co., 116 N. Y. 375; s. c. 39 Am. & Eng. R. Cas. 639; 26 N. Y. St. Rep. 729; 22 N. E. Rep. 402; 5 L. R. A. 544; Gregory v. New York &c. R. Co., 55 Hun (N. Y.) 303; s. c. 28 N. Y. St. Rep. 726; 8 N. Y. Supp. 525; McKenna v. Brooklyn Heights R. Co., 41 App. Div. (N. Y.) 255; s. c. 58 N. Y. Supp. 462; Malmone v. Dry-Dock &c. R. Co., 58 App. Div. (N. Y.) 383; s. c. 68 N. Y. Supp. 1073; Pennsylvania Co. v. Files, 65 Ohio St. 403; s. c. 62 N. E. Rep. 1047; Missouri &c. R. Co. v. Mitchell, 75 Tex. 77; s. c. 41 Am. & Eng. R. Cas. 224; 12 S. W. Rep. 810. Where, after more than three years

64

reasonably certain to ensue in the ordinary course of nature from the injuries received; but the evidence must show that they are reasonably probable to result from the injury. It has been held that an instruction, in an action for a personal injury, that the jury should determine to what extent the plaintiff had been disabled, and whether such disability would "probably" continue, and allow her for such disability such sum as the evidence showed her entitled to, was not erroneous as allowing recovery for disability other than what the evidence showed was reasonably certain to continue, especially where, in the same instruction, the jury were told that the plaintiff could only recover such damages as were caused solely by the accident, and that they must be guided by the evidence in determining whether there would be future. damage,

65

ARTICLE II. DUTY TO LIGHTEN CONSEQUENTIAL DAMAGES.

SECTION

7209. No recovery for damages enhanced by negligence of in

jured person.

SECTION

from

7212. Duty of passengers expelled from or prevented boarding train.

1210. Duty to obtain medical at- 7213. Duty to employ help to save

tendance.

7211. Damages enhanced by errors

of medical attendants.

property though advanced wages are demanded.

$7209. No Recovery for Damages Enhanced by Negligence of Injured Person. The doctrine limiting damages to the proximate results of an injury goes further, and imposes upon the sufferer from a negligent act the active duty of putting forth efforts to minimize its effects, and refuses damages enhanced by his negligence.1 The rule

from an accident, the plaintiff still limped, and could not swing her injured leg naturally or without pain, the jury was warranted in finding that the knee was not entirely well, and that plaintiff would suffer some inconvenience from it in the future: Ayres v. Delaware &c. R. Co., 4 App. Div. (N. Y.) 511; s. e. 40 N. Y. Supp. 11; s. c. aff'd, 158 N. Y. 254; 53 N. E. Rep. 22. An instruction in a personal injury case that reasonable compensation may be awarded if the injury is permanent, taking into consideration the probable loss of earnings which will be sustained, but that the conclusion must be based on the evidence, and that the jury must follow the evidence and reasonable inferences drawn therefrom, is a sufficient statement of the rule that, in order

to authorize a recovery for future consequences of an injury, it must appear reasonably certain from the evidence that they will occur: Hoyt v. Metropolitan St. R. Co., 175 N. Y. 502; s. c. 67 N. E. Rep. 1083; aff'g s. c. 73 App. Div. (N. Y.) 249; 76 N. Y. Supp. 832.

04 Cameron Mill &c. Co. v. Anderson (Tex. Civ. App.), 78 S. W. Rep. 8; s. c. aff'd, Tex. ; 81 S. W. Rep. 282.

Bailey v. Centerville, 108 Iowa 20; s. c. 78 N. W. Rep. 831.

1 Aikin v. Perry, 119 Ga. 263; s. c. 46 S. E. Rep. 93 (the subject of Civ. Code Ga. 1895, § 3802); Bailey v. Centerville, 108 Iowa 20; s. c. 78 N. W. Rep. 831; Sherman Center Town Co. v. Leonard, 46 Kan. 354; s. c. 26 Pac. Rep. 717; Louisville &c. Packet Co. v. Bottorff, Ky.

only affects the enhanced damages and does not prevent the recovery of such damages as are the proximate result of the wrongful act, where they can be separated. Only reasonable or ordinary care is contemplated by this rule of damages, and the injured person is not bound to use the utmost care that any person might use.3

§ 7210. Duty to Obtain Medical Attendance.-If a personal injury is sustained as the result of a negligent act, and is of such a nature as to require medical attendance, it is the duty of the injured person not only to act promptly in calling a physician but to use reasonable care in the selection of the physician called, and he cannot recover for pain or suffering, either physical or mental, sustained by reason of his failure to use reasonable care in these respects.* Where a physician has been called it is the duty of the patient to acquaint the physician with the facts necessary to enable the physician properly

s. c. 77 S. W. Rep. 920; 25 Ky. L. Rep. 1324; Armistead v. Shreveport &c. R. Co., 108 La. 171; s. c. 32 South. Rep. 456; Factors &c. Ins. Co. v. Werlein, 42 La. An. 1046; s. c. 8 South. Rep. 435; 11 L. R. A. 361; Dietrich v. Hannibal &c. R. Co., 89 Mo. App. 36; Plummer v. Milan, 79 Mo. App. 439; s. c. 1 Mo. App. Repr. 600; Ft. Worth &c. R. Co. v. Word (Tex. Civ. App.), 32 S. W. Rep. 14; Throckmorton v. Missouri &c. R. Co., 14 Tex. Civ. App. 222; s. c. 39 S. W. Rep. 174. Where defendant obstructed plaintiff's drain, who could have indemnified himself for $25, but by delaying to repair the damages amounted to $100, the legal measure of damages is $25: Lloyd v. Lloyd, 60 Vt. 288; s. c. 6 N. Eng. Rep. 250; 13 Atl. Rep. 638.

Owens v. Baltimore &c. R. Co., 35 Fed. Rep. 715; s. c. 1 L. R. A. 75; Georgia &c. R. Co. v. Berry, 78 Ga. 744; s. c. 4 S. E. Rep. 10; Goshen v. England, 119 Ind. 368: s. c. 21 N. E. Rep. 977; Gulf &c R. Co. v. Coon, 69 Tex. 730; s. c. 7 S. W. Rep. 492.

Mt. Sterling v. Crummy, 73 Ill. App. 572; Sandwich v. Dolan, 34 Ill. App. 199; Illinois Cent. R. Co. v. Gheen, 112 Ky. 695; s. c. 66 S. W. Rep. 639; 68 S. W. Rep. 1087; 24 Ky. L. Rep. 68; Webb v. Metropolitan St. R. Co., 89 Mo. App. 604; Inman v. St. Louis &c. R. Co., 14 Tex. Civ. App. 39; s. c. 37 S. W. Rep. 37. 'Cameron v. Vondegriff, 53 Ark. 381; s. c. 13 S. W. Rep. 1092; Texas &c. R. Co. v. White, 101 Fed. Rep.

928; s. c. 42 C. C. A. 86; Robertson v. Texas &c. R. Co., Tex. Civ. App. - s. c. 79 S. W. Rep. 96; Texas Portland Cement Co. v. Poe, 32 Tex. Civ. App. 469; s. c. 74 S. W. Rep. 563. That plaintiff, suing for personal injury, employed a physician and surgeon who had been in practice eighteen years and was a graduate of the University of Michigan is prima facie evidence of reasonable diligence and care in the selection of a surgeon: Reed v. Detroit, 108 Mich. 224; s. c. 2 Det. Leg. N. 822; 65 N. W. Rep. 967. The duty of an injured person to employ competent medical counsel extends merely to doing what a prudent person would do under the circumstances: Elgin v. Riordan, 21 Ill. App. 600. In an action for injuries plaintiff may state that he was attended by a certain physician, whose reputation as a physician was good, as showing due care in employing a reputable physician to treat his wounds: Baker v. Borello, 136 Cal. 160; s. c. 68 Pac. Rep. 591. Evidence that plaintiff in an action for negligently shooting his son, resulting in a loss of his eyesight, tried to borrow money from defendant to take his son to an oculist and that defendant advised him not to incur the expense, is admissible to show that plaintiff was reasonably diligent under the circumstances in consulting a physician, although he did not do so at once: Seltzer v. Saxton, 71 Ill. App. 229.

6

5

to treat the injury, but this is not required where the physician is already acquainted with these facts. This rule requires only the exercise of such action as would occur to a prudent person; and hence a person who receives what he supposes to be a trifling injury, and who treats it with ordinary home remedies for some time and only calls in a physician when he discovers that it is not healing properly, is not thereby barred from a recovery. The failure to call a physician cannot, however, be urged as a defense where the injured person gave to his injuries such treatment as a physician of ordinary care, prudence and skill would have used. The physician having been called, it is the plain duty of the patient to follow the directions given by the physician, and he cannot recover damages increased by his failure to follow such instructions. In the present state of medical and surgical science, the law does not require that an injured person should adopt recommendations of his physician liable to be attended with dangerous or fatal results. Thus, it has been held that one injured by a fall was not to be charged with such negligence as would affect his recovery, in refusing to follow the advice of his surgeon and submit to an operation for hernia, when his conduct was that of a reasonable and prudent man acting in the exercise of reasonable judgment."

§ 7211. Damages Enhanced by Errors of Medical Attendants.—An injured person exercising ordinary care in the employment of a physician to treat his injury may recover for aggravation of the injury resulting from the negligence or mistaken treatment of his physician, these enhanced injuries being generally regarded by the courts as direct results of the original injury.10

'Rock Island v. Starkey, 189 Ill. 515; s. c. 59 N. E. Rep. 971; rev'g s. c. 91 Ill. App. 592.

*Toledo v. Radbone, 23 Ohio C. C. 268. See also, Galesbury v. Rahn, 45 Ill. App. 351; Texas &c. R. Co. v. Neal (Tex. Civ. App.), 33 S. W. Rep. 693.

'Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29; s. c. 58 S. W. Rep. 278.

'Hennessy v. District of Columbia, 8 Mackey (D. C.) 220; s. c. 19 Wash. L. Rep. 322; Zibbell v. Grand Rapids, 129 Mich. 659; s. c. 89 N. W. Rep. 563; 8 Det. Leg. N. 1120; Gulf &c. R. Co. v. Denson (Tex. Civ. App.), 72 S. W. Rep. 70 (no off. rep.).

Williams v. Brooklyn, 33 App. Div. (N. Y.) 539; s. c. 53 N. Y. Supp. 1007.

10 Chicago City R. Co. v. Cooney, 196 Ill. 466; s. c. 63 N. E. Rep. 1029; aff'g s. c. 95 Ill. App. 471; Kennedy v. Busse, 60 Ill. App. 440; Pullman Palace Car Co. v. Bluhm, 109 Ill. 20; s. c. 50 Am. Rep. 601; Sandwich v. Dolan, 34 Ill. App. 199; Louisville &c. R. Co. v. Falvey, 104 Ind. 411; Citizens' St. R. Co. v. Hobbs, 15 Ind. App. 610; Columbia City v. Langohr, 20 Ind. App. 395; s. c. 50 N. E. Rep. 831; Rice v. Des Moines, 40 Iowa 638; Stover v. Bluehill, 51 Me. 439; McGarrahan v. New York &c. R. Co., 171 Mass. 211; s. c. 50 N. E. Rep. 610; Reed v. Detroit, 108 Mich. 224; s. c. 2 Det. Leg. N. 822; 65 N. W. Rep. 967; Boynton v. Somersworth, 58 N. H. 321; Tuttle v. Farmington, 58 N. H. 13; Lyons v. Erie R. Co., 57 N. Y. 489; Heintz v. Caldwell, 16 Ohio C. C. 630;

§ 7212. Duty of Passengers Expelled from or Prevented from Boarding Train.-The rule makes it the duty of a passenger prevented from taking a train by the wrongful act of the carrier's servant to hold himself ready to take the next train. Thus, a passenger driven from a depot by the railroad company's watchman and prevented from boarding the train to go to his sick wife and child, cannot recover for anxiety suffered on account of being kept from his wife and child where it appears that there were frequent subsequent trains which he might have taken but did not.11 A passenger cannot recover against the railroad company for damages for sickness caused by walking back to a station past which he was carried, where the sickness was caused or contributed to by his refusal to be taken home from the station, and by walking there-a greater distance than from the place where the train was stopped to the station. 12 Nor can a passenger expelled from a train recover damages for walking and its consequences, when he might have reached his destination more cheaply and expeditiously and with less injury to health by other methods of transportation open to him; nor, as a general rule, can he recover damages for inconvenience, hardship or injury to health originating after he had reached his destination.13 If he can find shelter where he is wrongfully put off, he cannot recover for injuries voluntarily incurred by refusing the shelter and walking to his destination.11

§ 7213. Duty to Employ Help to Save Property Though Advanced Wages are Demanded.-Where, owing to the negligence of another, the owner of property is threatened with loss, it is his duty to employ help to remove it to a place of safety, and it is no excuse for shirking this duty that the help available for this purpose demands advanced prices for the work. Thus, it has been held that the owner of a vessel sunk at a wharf through the negligence of a wharf-owner cannot recover for injury to cargo which could have been avoided had the master and foreman of the owners of the cargo not refused to employ men present and willing to work because they demanded wages in advance of the prices usually paid stevedores.15

Loeser v. Humphrey, 41 Ohio St. 378; s. c. 52 Am. Rep. 86; Mattis v. Philadelphia Traction Co., 6 Pa. Dist. Rep. 94; Dallas v. Meyers (Tex. Civ. App.), 55 S. W. Rep. 742 (no off. rep.); Bardwell v. Jamaica, 15 Vt. 438; Selleck v. Janesville, 100 Wis. 157; s. c. 41 L. R. A. 563; 75 N. W. Rep. 975; 4 Am. Neg. Rep. 352.