An action for damages was brought against the railroad company by Lillie Peterson, who, while riding as a passenger upon the defendant’s train, received personal injuries, caused by the coach in which she was seated becoming derailed and overturned. The casualty was brought about by the breaking of the flange on one of the wheels of the car. The company undertook to show that the wheels under this car had been properly inspected on the morning of the day when the plaintiff’s injuries were received, and that the defect in the flange which broke w^s a latent imperfection which could not have been discovered. What was supposed to be a portion of this flange was subsequently found lying upon the track about two miles .from the place where the car became derailed, though no effort to verify the conclusion that this piece of iron had, in point of fact, formed a part of the broken Wheel was made by attempting to “fit” this piece into the break left in the flange of that wheel. This piece of iron was tendered and admitted in evidence, with a view to showing that the defect in the wheel was a latent one, and that the flange had not become •sufficiently worn to render the wheel unsafe. A witness for the plaintiff testified that, soon after the catastrophe, he made an examination of the wheels of the coach and found that the “flanges were worn very thin.” He further stated that he had measured
1. Complaint was made in the motion that the court erred in admitting in evidence the piece of iron which the company contended had formed a part of the wheel which was broken. Also, that error was committed in refusing to allow the plaintiff to prove “that this car of defendant had run off three or four years before this accident.” Were we, as we are not, inclined to think error was committed in either of these rulings, we would be unwarranted in holding the error was prejudicial to the plaintiff, since she won the case notwithstanding. The same reply may be made to the plaintiff’s contention that the court incorrectly charged as to the burden of proof which rested upon' her, and committed error in telling the jury she would have no right to recover if they believed she could, “ by the exercise of ordinary care, have avoided’ the consequences of the defendant’s negligence.” That they did not so believe is evidenced by their finding in her favor. Exception is also taken to a charge as to the duty of a railroad company to observe “ extraordinary care and diligence in the construction of its road, laying of its rails and the maintenance” thereof, as well as “ in providing proper and safe coaches, and in operating its cars.” The complaint made of this charge is that it “ excluded from the jury the theories of the plaintiff that the defendant was negligent in not having its car-wheels properly tested before leaving its terminus on the day of the injury, and in not "having a bell-rope by which the conductor could signal the engineer to stop.” Suffice it is to say this charge did not actually have the effect off excluding these “theories of the plaintiff,” or ■else the jury were not at a loss to discover equally good theories upon which to base the verdict they returned in her favor.
2. Much stress was laid- upon the complaint of the plaintiff that the court, over her objection, permitted one James,“a witness for the defendant, to testify that he was the sole owner of all the stock of ” the railroad company. In a brief filed in her behalf, counsel insist that this evidence was not only wholly irrelevant,
3. In her petition the plaintiff alleged that, “ by reason of her' impaired capacity to labor,” she had been “ damaged in the sum of $4,500, her injuries being of a permanent nature.” Also, that by reason of being injured in the manner described, “ she suffered great pain,” and “ endured, and still ” endured at the time of filing her petition, “ the torture of almost constant suffering; ” and that “ by reason of said pain and suffering she [had] been damaged in the sum of $5,000.” She did not, however, undertake to affirmatively allege that, though permanently injured, she had reason to apprehend she would experience future suffering; nor did she pray for
Judgment affirmed.