Baltimore City Passenger Railway Co. v. Kemp

Alvey, C. J.,

delivered the opinion of the Court.

This is an action brought by husband and wife to recover for personal injuries suffered by the wife, caused, as it is alleged, by the negligent wrong of the defendants.

The trial below resulted in a verdict and judgment for the plaintiffs; and the defendants have appealed for alleged errors in granting a prayer on the part of the plaintiffs, and refusing a prayer on the part of the defendants.

1. It is objected by the defendants, that the instruction granted at the instance of the plaintiffs, includes and authorized the jury to find for a cause of action that should have been sued for by the husband alone, without the joinder of the wife. We do not so read the instruction. It simply directed the jury that, in estimating the damages, they were to consider the health and condition of the female plaintiff before the injury complained of, as compared with her condition at the time of the' trial, in consequence of the injury ; “ and whether the injury in its nature was permanent, and how far it was calculated to disable her from engaging in those household pursuits and employments, for which, in the absence of such injury she would be qualified ; and also the physical and mental suffering to which she was subjected, by reason of the injury; and to allow such damages as in the opinion of the jury would be a fair and just compensation for the injury which she sustained

Now, according to the common law upon this subject, it is perfectly Well settled, that in an action brought for personal injuries suffered by the wife, the husband and wife must join, and the declaration must conclude to their damage. But in such action care should be taken that there be not included any cause of action for which the husband should sue alone ; as, for instance, for loss of services, expenses incurred, and the like. Dengate and Wife vs. Gardiner, 4 M. & W. 6; Stoop and Wife vs. Swarts, 12 Sergt. & R., 76; 1 Chitt. Pl. 82, 83. In the instruction before us reference is made to the disability of the wife to perform household duties, but that was only by way of contrasting her former with her present condition of health. The jury were not directed or authorized, in estimating the damages, to allow for the loss of services of the wife while suffering under the disability occasioned by the injury. The instruction, in terms, confined the damages to be awarded to compensation for the personal injury sustained by the wife; and there was nothing embraced for which the husband could have sued alone. The action was brought before the passage of the Act of 1882, ch. 265, which provides “that any married woman may sue in any Court of law or equity in this State, upon any cause of action, in her own name, and without the necessity of a prochein ami, as if she were feme sole;” and therefore it is unnecessary to consider whether that Act extends to a case like the present.

2. The second prayer offered by the defendants, and which was 'refused by the Court, asked that the jury be instructed that there was no legally sufficient evidence that the cancer, testified to by the witnesses, was caused by the negligence of the defendants, and therefore they should not take the cancer into consideration in estimating any damages that they might award to the female plaintiff. And upon this prayer for instruction, the defendants contend, 1st. That there was no evidence, legally suffix dent to be considered by the jury, that the cancer of which Mrs. Kemp suffered was the natural result or consequence of the negligence complained of; and, 2ndly, that if there was in fact, any causal connection between the immediate injury received by Mrs. Kemp and the subsequent development of the cancer, the latter, to be treated as a legal effect, was too obscure, and too remote from the alleged cause, to form an element of damage for the original wrongful act.

We shall not recite in detail all the evidence upon the subject. Suffice it to state, that the evidence shows clearly and without contradiction, that Mrs. Kemp was, at the time of the accident, and for many years prior thereto, apparently in good health and condition. The accident, occurred about the middle of May, 1880, and a very short time thereafter the cancer commenced its development on the injured part of her person. In her testimony, after describing the manner in which the accident occurred, and how she was thrown against the railing on the platform of the car, as she was about getting off, and the hurting of her right arm and left breast, she states that the right arm was bruised and discolored; and “where the breast was struck it was sore, and remained so from that time out. Prior to that time she had no pain or soreness ; and two or three weeks afterward, a small lump appeared in the left breast,” which, upon being shown to her physicians, was pronounced to he a cancer. Dr. Smith first operated for its removal on the 8th of November, 1880, when it was about the size of an orange, and he operated again about the 12th of January, 1881, when the entire breast was removed, hut without success in extirpating the roots of the disease. The cancer still remains, and is pronounced to he incurable. The two daughters of Mrs. Kemp, in their testimony,, fully corroborate the statement of their mother, in regard to her previous good health and apparent freedom from disease, and the subsequent appearance and growth of the cancer. And the professional witnesses, while they all testify that it is impossible to know and be certain as to the origin of cancer in any given case, yet they all agree in saying that the blow, such as that described by Mrs. Kemp, was sufficient and may have been the cause of the development of the cancer in her case. In the opinion of two. of the physicians, Dr. Latimer and Dr. Turner, the blow on the breast, as described by Mrs. Kemp, was not only sufficient cause for the production of the cancer, but that they would attribute the cancer to that cause. And from the coincidences of the case we must say that their opinion does not appear to be unreasonable.

Now, with this evidence in the case, unless the Court could have been required to hold, as matter of law, that the production of cancer was too uncertain and too remote a consequence of the alleged injury to be allowed to be considered in estimating the damages, upon what principle could the Court properly withhold the matter from the jury, upon the prayer offered by the defendants ? It was for the jury to determine, as matter of fact, «whether the cancer did result from the injury received. And in determining this question they were required to consider all the circumstances and coincidences of the case, in connection with the testimony given by the professional witnesses. If therefore the subject was proper to be considered by the jury at all, we are clearly of opinion that there was evidence sufficient to be considered by them.

Now, the question is, whether the production of cancer, as the result of an injury received by the negligence of the defendants, under the circumstances of this case, be too remote a consequence from such negligence, to form an element of damage to the plaintiff. If it be not, then, clearly, the Court below committed no error in refusing the second prayer of the defendants.

It is not simply because the relation of cause and effect may be somewhat involved in obscurity, and therefore difficult to trace, that the principle obtains, that only the natural and proximate results of a wrongful act are to be regarded. It is only where there may be a more direct and immediate sufficient cause of the effect complained of, that the more remote cause will not be charged with the effect. If a given result can be directly traced to a particular cause, as the natural and proximate effect, why should not such effect be regarded by the law, even though such cause may not always, and under all condition of things, produce like results? It is the common observation of all, that the «fleets of personal physical injuries depend much upon the peculiar conditions and tendencies of the persons injured; and what may produce but slight and comparatively iminjurious consequences in one case, may produce consequences of the most serious and distressing character in another. And this being so, a wrong-doer is not permitted to relieve himself from responsibility for the consequences of his act, by showing that the injury would have been of less severity if it had been inflicted upon anyone else of a large majority of the human family. Hence the general rule is, that, in actions of tort like the present, the wrongdoer is liable for all the direct injury resulting from his wrongful act, and that too although the extent or special nature of the resulting injury could not, with certainty, have been foreseen or contemplated as the probable result of the act done. 3 Suth. on Dam., 714, 715, and the cases there cited. The general rule is stated by Addison, in his work on Torts, (3rd .Ed.) page 5, with as much clearness and precision as will be found in any other text writer, and he states the rule to be, “that whoever does an illegal act is answerable for all the consequences that ensue in the ordinary and natural course of events, though those consequences be immediately and directly brought about by the intervening agency of others, provided the intervening agents were set in motion by the primary wrong-doer, or provided their acts causing the damage were the necessary or legal and natural consequence of the original wrongful act.” If, therefore, the jury believed from all the evidence before them, that the cancer in the breast of Mrs. Kemp was the natural and proximate consequence of the blow received on her breast, by the negligent act of the defendants, it would properly form an element to be considered in awarding damages for the pain and injury suffered by her.

If by the blow received a severe contusion had been produced, resulting in an ordinary tumor or open ulcer, we suppose no question would have been raised as to the right of the plaintiff to show such results of the injury received, as indicating the extent of the injury and the degree of' suffering endured. Why should a different rule be applied to this case ? That the female plaintiff may have had a tendency or predisposition to cancer, can afford no-proper ground of objection. She in common with all other people of the community had a right to travel or be carried in the cars of the defendants, and she had a right to enjoy that privilege without incurring the peril of receiving a wrongful injury that might result in inflaming and developing the dormant germs of a fatal disease. It is. not for the defendants to say that because they did not, or could not in fact, anticipate such a result of their negligent act, they must therefore be exonerated from liability for such consequences as ensued. They must be taken to. know, and to contemplate, all the natural and proximate consequences, not only that certainly would, but that probably might flow from their wrongful act. The defendants must be supposed to know that it was the right of all classes and conditions of people, whether diseased or otherwise, to be carried in their cars, and it must also be supposed that they knew that a personal injury inflicted upon any one with predisposition or tendency to cancer, might, and probably would, develop the disease. See case of Stewart vs. City of Ripon, 38 Wis., 584.

The defendants have cited and relied upon the case of Hobbs and Wife vs. The London & South-Western R. Co., L. R., 10 Q. B., 111, as maintaining a doctrine different from that just stated by us. But in several respects that case is quite different from this. In the first place, that was an action upon contract, seeking a recovery for a breach thereof. There a passenger, who had been set down with his wife at a wrong station, sought to recover, from the railway company damages for a cold which his wife had taken in consequence of the exposure in having to walk home in the rain. And it was held, that the loss so occasioned was not so connected with the breach of contract as that the carrier breaking the contract would be liable. As said by the Court, the catching cold by the plaintiff’s wife was not the immediate and necessary effect of the breach of contract, or was not such an effect as could fairly be said to have been in the contemplation of the parties. But we suppose, with Mr. Mayne, in his work on Damages, page 73, (Wood’s Ed.,) that that case would have been differently decided, if, instead of putting the plaintiff down safely at the wrong place, the company had by their negligence caused any personal injury to him. Without, therefore, intimating that we should accept the decision as an authority in any case, we think it has no direct application to the case before us.

(Decided 20th December, 1883.)

Concurring with the Court below in its nilings excepted to, we must affirm the judgment.

Judgment affirmed.