7215. Contributory negligence of injured person. 7221. Repairs increasing the efficiency of vessel injured. 7216. Reduction of damages by in- 7222. Character of the injured per surance. 7217. Charitable subscriptions and wages paid. 7218. Prior condition of injured per son. son. 7223. Death of animals-Value of hides and pelts. 7224. Existence of other water source in cases of pollution. 7219. Other avenues of employment 7225. Matter in mitigation should § 7215. Contributory Negligence of Injured Person.-It follows as a corollary to the doctrine restricting the damages recoverable to such as are the natural and proximate result of the negligent act, that one charged with negligence may mitigate or reduce the damages by showing that they in part have resulted from the negligence of the injured person himself, or from other acts for which the defendant is not responsible. We have already seen that it is the duty of the injured person to minimize the effects of his injury, and that he cannot recover for damages enhanced by his own negligence after receiving the injury.1 In like manner, where the plaintiff has been guilty of negligence, but of such a nature as not to be a bar to the action, such negligence is sometimes allowed to be considered by the jury in mitigation of the damages. Thus, misrepresentation by a boy as to his age in obtaining employment in a factory has been held proper to be taken into consideration in mitigation of damages for injuries from setting him to work at a dangerous machine." 2 § 7216. Reduction of Damages by Insurance.-In an action for personal injury the defendant cannot show in mitigation of damages 1See ante, § 7193. Central of Georgia R. Co. v. McKinney, 116 Ga. 13; s. c. 42 S. E. Rep. 229; Rice v. Crescent City R. Co., 51 La. An. 108; s. c. 24 South. Rep. 791; Gould v. McKenna, 86 Pa. St. 297; s. c. 6 Rep. (Pa.) 343; Louisville &c. R. Co. v. Wallace, 90 3 Legare v. Esplin, Rap. Jud. Que. 12 C. S. 113. that the plaintiff was insured in an accident policy, and that the money was paid to him in consequence of the injury. The same doctrine applies in the case of an action for the destruction of property by fire, which was insured, and for which the policy was paid." How can a wrong-doer be permitted to take the benefit of a policy to which he is not a party, and on which he has not paid the premiums? In Massachusetts, however, it is provided by statute that when a railroad company is held responsible for the destruction of property by fire, it shall be entitled to the benefit of any insurance effected on the property by the owner, less the cost of premiums and expenses of recovery; and it has been held by the courts of that State that the railroad company could avail itself of the statute though the insurance was issued before its passage." § 7217. Charitable Subscriptions and Wages Paid.-For similar reasons damages cannot be mitigated by the fact that after the plaintiff is injured a charitable subscription is taken and the money paid to him. Nor will wages received by the plaintiff after the injury go to the mitigation of damages; but evidence of the earning of such wages is admissible to enable the jury to arrive at an estimate of permanent injury to the earning power of the plaintiff." § 7218. Prior Condition of Injured Person.-A person injured by the negligent act of another may recover for all the ill effects which naturally follow the injury in the condition of health in which he was at the time, and the recovery will not be defeated by the fact of an existing infirmity or susceptibility increasing his liability to the particular injury.10 Thus, where damages to a child by an injury appear * Pittsburgh &c. R. Co. v. Thompson, 56 Ill. 138; Allen v. Barrett, 100 Iowa 16; s. c. 69 N. W. Rep. 272; Louisville &c. R. Co. v. Carothers (Ky.), 23 Ky. L. Rep. 1673; s. c. 65 S. W. Rep. 833; Bradburn v. Great Western R. Co., L. R. 10 Exch. 1; s. c. 44 L. J. (Exch.) 9. Collins v. New York &c. R., 5 Hun (N. Y.) 503. * Mass. St. 1895, ch. 293 (Rev. Laws Mass., ch. 111, § 270). Lyons v. Boston &c. R. Co., 181 Mass. 551; s. c. 64 N. E. Rep. 404. 8 Norristown v. Moyer, 67 Pa. St. 356. sustained by an express messenger by the derailment of the express car is not entitled to show in abatement of damages, on the ground of partial compensation, that it paid one-half of plaintiff's salary and doctor's bills after the injury, and that plaintiff knew when they were paid him by the express company that the railway company was expected to pay one-half: Williams v. St. Louis &c. R. Co., 123 Mo. 573; s. c. 27 S. W. Rep. 387. 10 See Vol. I, § 150. See also, Campbell v. Los Angeles Traction Co., 137 Cal. 565; s. c. 70 Pac. Rep. 624; Denver v. Hyatt, 28 Colo. 129; s. c. 63 Pac. Rep. 403; Louisville &c. R. Co. v. Falvey, 104 Ind. 409; Louisville &c. R. Co. v. Snider, 117 Ind. 435; s. c. 20 N. E. Rep. 284; Ohio to be aggravated by a latent hysterical condition, which had never exhibited itself before the accident and might never have developed but for it, the defendant has been held for the entire damages as the direct result of the accident.11 So, in another case, where a city negligently maintained a sidewalk in such a defective condition that injury to pedestrians might result, and a person suffering from a diseased condition in his leg was injured by reason of this negligence, and the injury was aggravated by the disease and the recovery retarded or prevented, the city was held liable for the whole injury.12 In still another case the rule was applied where the plaintiff was in good health prior to a personal injury due to defendant's negligence, but the shock of such injury produced delirium tremens, by reason of which, and of his acts during delirium, his recovery from the injury was retarded and rendered less complete, and it was held that the fact that his susceptibility to the disease was the result of his own voluntary acts should not be considered in mitigation of damages, but the defendant was liable for all damages resulting from the disease, as well as from the original injury.18 $7219. Other Avenues of Employment Open to Injured Person. -It is competent in an action for personal injuries to show in mitigation of damages that the injury need not prevent the injured person from pursuing other occupations, and in the case of loss of limb to show that by the use of an artificial limb employment in most ordinary Occupations would not be interfered with." c. R. Co. v. Hecht, 115 Ind. 443; s. c. 17 N. E. Rep. 297; 15 West. Rep. 122; Lapleine v. Morgan &c. Co., 40 La. An. 671; s. c. 1 L. R. A. 378; 4 South. Rep. 875; Owens v. Kansas City &c. R. Co., 95 Me. 169; s. c. 51 West. Rep. 88; 8 S. W. Rep. 350; Schwingschlegl v. Monroe, 113 Mich. 683; s. c. 4 Det. Leg. N. 447; 72 N. W. Rep. 12; Purcell v. St. Paul City &c. R. Co., 48 Minn. 134; s. c. 45 Alb. L. J. 212; 11 Rail. & Corp. L. J. 114; 50 N. W. Rep. 1034; Brown v. Hannibal &c. R. Co. 66 Mo. 588; Matthew v. Wabash R. Co. (Mo. App.), 78 S. W. Rep. 271; Owens v. Kansas City &c. R. Co., 95 Mo. 169; 8. c. 15 West. Rep. 88; 8 S. W. Rep. 350; Galveston &c. R. Co. v. Butchek (Tex. Civ. App.), 78 S. W. Rep. 740; Gulf &c. R. Co. v. Brown, 16 Tex. Civ. App. 93; s. c. 40 S. W. Rep. 608; Gulf &c. R. Co. v. Reagan (Tex.), 34 S. W. Rep. 796; Dreiss v. Frederick, 73 Tex. 460; s. c. 8 S. W. Rep. 64; Texas &c. R. Co. v. Lee, 32 Tex. Civ. App. 23; s. c. 74 S. W. Rep. 345; 14 Abbott v. Tolliver, 71 Wis. 64; s. c. "Lapleine v. Morgan's &c. Co., 40 12 Jordan v. Seattle, 30 Wash. 116; s. c. 70 Pac. Rep. 743. 13 Maguire v. Sheehan, 117 Fed. Rep. 819; s. c. 54 C. C. A. 642; 59 L. R. A. 496. 14 Hamilton v. Pittsburg &c. R. Co., 104 Ill. App. 207. § 7220. Ejection of Passengers.-When a passenger offered, without any explanation, a ticket which was void by reason of having been punched, and refused to pay his fare, for which he was ejected from the car three or four miles from a station, contrary to the Illinois statute, it was held that the attempt of the plaintiff to use such a ticket without explanation as to how he obtained it was evidence of wrong on his part, and must mitigate the damages which otherwise would be awarded.15 In an action by a passenger for wrongful ejection from a railroad train, it appeared that the rate of fare fixed by the company was higher than that allowed by law; that the plaintiff tendered the legal rate; that upon his refusal to pay more he was ejected from the cars, but without any rudeness or unnecessary violence; that at the time he took passage the plaintiff knew the rate established by the company, and expected to be ejected from the cars, intending to bring an action for such ejection, in order to test the right of the company to charge the established rate. Upon these facts the plaintiff was held entitled to compensatory damages only, and the company was permitted, for the purpose of mitigating the damages, to give in evidence subsequent declarations of the plaintiff tending to prove that his object in taking passage on the cars was to make money by bringing suit against the company for demanding more than the statutory rate of fare.10 § 7221. Repairs Increasing the Efficiency of Vessel Injured.—The fact that repairs made necessary by a collision really make a vessel stronger and better than before the collision cannot be taken advantage of by the vessel responsible for the collision and consequent injury to reduce the amount of its liability.17 § 7222. Character of the Injured Person.-The Supreme Court of Wisconsin is authority for the doctrine that the character of an injured person may be considered in mitigation of damages. In the case of an injury to a woman having more than one husband the court uses this language: "We do not wish to intimate that an unchaste woman who is maimed and disabled by an accident on the railroad may not suffer as much pain of body or anxiety of mind as a virtuous woman would from a like injury; but still, when it comes to a question of awarding damages, it may be that a jury would not give-perhaps ought not to give the same damages for injuries to an unchaste 15 Terre Haute &c. R. Co. v. Va- Rep. 433; The Alaska, 44 Fed. Rep. natta, 21 Ill. 188. 16 Cincinnati &c. R. Co. v. Cole, 29 Ohio St. 126. 17 The John H. Starin, 116 Fed. 498; H. M. Loud & Sons Lumber Co. v. Peter, 11 Ohio C. D. 155; s. c. 20 Ohio C. C. 73. 1 woman that they would allow a virtuous, intelligent and industrious woman, who could command good wages or take care of a family. The fact of chastity, as well as other personal virtues and business qualifications, would be proper matters for a jury to consider in making up their verdict as to what damages should be given as a compensation for the injury received, in view of all the facts."18 The doctrine is vicious and without the support of either reason or authority. The right to mitigate damages suffered as the result of a negligent act because of the bad character or lowly position of the injured person would authorize a jury to increase the damages in cases where he was of good character or occupied a more exalted position, a doctrine abhorrent to sense and reason.19 $7223. Death of Animals-Value of Hides and Pelts.-Where animals are killed through negligence the damages should be reduced by the amount received for hides, pelts, etc.,20 but the amount received from this source should be shown, and a verdict will not be held excessive because the jury did not consider the value of pelts, where there was no evidence as to their value.21 $7224. Existence of Other Water Source in Cases of Pollution.It may not be urged in mitigation of damages for pollution of a water course that other sources of water supply were available to the plaintiff, where it sufficiently appears he had the right to use the particular water course.22 $7225. Matter in Mitigation should be Pleaded.-Matter in mitigation of damages should be specially pleaded, and cannot be proven under a general denial.23 An answer by a railroad company in an action by an employé for personal injuries, which attempts to interpose as a defense the receipts of benefits from a relief department, the members of which agree that the receipt of benefits shall operate as a release of all claims for damages against the company arising from injury, must set out the nature, character and objects of the department, as well as the amount and character of the benefits accruing to the plaintiff.24 "Cole, C. J., in Abbott v. Tolliver, 71 Wis. 64; s. c. 36 N. W. Rep. 622. "Hardy v. Minneapolis &c. R. Co., 36 Fed. Rep. 657; Johnson v. Wells, 6 Nev, 224. "Chicago &c. R. Co. v. Lee, 66 Kan. 806; s. c. 72 Pac. Rep. 266; Gulf &c. R. Co. v. Butler (Tex. Civ. App.), 73 S. W. Rep. 84. See Vol. II, § 2210. 21 Peeler v. McMillan, 91 Mo. App. 310. 22 Stevenson v. Ebervale Coal Co., 201 Pa. St. 112; s. c. 50 Atl. Rep. 818. 23 Vierling v. Binder, 113 Iowa 337; s. c. 85 N. W. Rep. 621. 24 Chicago &c. R. Co. v. McGraw, 22 Colo. 363; s. c. 45 Pac. Rep. 383. |