[No. 9161.

Department One.

December 21, 1910.]

#### Minnie Horton, *Respondent,*v. The City of Seattle, *Appellant.**1*

Municipal Corporations — Personal Injuries — Notice oe Claim— Variance. Under a claim against a city for personal injuries alleging that plaintiff was greatly, bruised and injured and her whole right side paralyzed, and that she suffered great pain under her kidney, it is permissible to show injuries to the right shoulder and back.

Appeal — Review—Harmless Error — Evidence. It is not prejudicial error to permit little more than a mere incidental reference to earning capacity under a complaint failing to allege loss in that respect.

Appeal from a judgment of the superior court for King county, Gay, J., entered March 25, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

Affirmed.

*Scott Calhoun*and *James E. Bradford,*for appellant.

*Blame, Tucker*<§• *Hyland*and *Robert C. Saunders,*for respondent.

1

Reported in 112 Pac. 366.

Parker, J.

This is the second appeal in an action to recover damages for personal injuries. The first appeal was disposed of in our decision reported in 53 Wash. 316, 101 Pac. 1091, when the cause was remanded for a new trial because of errors occurring in the first trial. A new trial resulted in a verdict and judgment in favor of the plaintiff, and the city has again appealed.

It is first contended that the trial court erred in admitting evidence, over appellant’s objections, tending to show injury to the shoulder and back of the respondent, upon the ground that no statement of such injury was made in the notice of her claim filed with the city as required by its charter. The *302statement in her claim involved in this contention is as follows:

> “She was greatly bruised and injured and her whole right side was paralyzed and she suffered great pain under her kidney and right hip joint; and she also suffered severe pains in her right leg.”

Respondent was permitted to testify, among other things, as follows:

> “A. Well, my back hurt me so bad that I could not hardly lift anything.......A. My back hurts me all the time, I can’t lift buckets of water nor nothing of that kind. ... Q. Was your shoulder affected by that fall? A. Yes, I think the doctor said my right shoulder was about an inch lower than my left one. Q. Now, you say that at the time of the accident this right leg and right arm were paralyzed; is that right? A. Yes, sir; pretty nearly so, I think. Q. I wish you would state to the jury what the condition has been since that with reference to your right limbs? A. Well, my right hand is cold all the time, and my right foot is cold and I don’t — I can’t feel much with that one, and I froze my foot not very long ago *and*I didn’t know it was froze until I got home. ... A. Well, I just thought my whole back was hurt, I could not specify that my shoulder was hurt apart from anything else, it was my whole back from my shoulder to my hips.”

Her physician was permitted to testify, among other things, as follows:

> “The muscles under the shoulder blade, attached to the shoulder blade on the right side, were in a state of tensity. . . . A. What I mean by the back is the right side of the back, understand, and around as far as the muscle that I have described has a function, that is, it is attached all the way along the shoulder blade and will extend pretty well forward, or at least almost to the median line on the side. There is tenderness about both this muscle and over the muscle of the attachment to the wings of the vertebrae on that side. And this tenseness and spastic condition of the muscles attached to the shoulder blade has a tendency to pull the right shoulder down, keeping it in a state of contraction. . .

*303It seems clear to us that, under the liberal rule heretofore adopted by this court relating to the sufficiency of a notice of claim such as is here involved, this evidence was all admissible. We have not quoted all of the evidence of this nature objected to, but that above quoted will show its general nature, and we think comes the nearest to being objectionable of any of it. We think it is easy to see that it all has some relation to her claim that her “whole right side was paralyzed.” And her reference in her claim to her “great pain under her kidney,” of course relates to pain in the region of the back. We think there was no error in admitting this evidence.

It is next contended that the court was in error in admitting evidence relating to respondent’s loss of time and earning capacity, upon the ground that the pleadings did not put that matter in issue. A critical examination of this evidence might disclose a possible technical error, but the evidence is little more than an incidental reference to her earning capacity, and it was not followed up by any attempted showing as to the amount' of time she had lost because of the injury. If there was any error in this regard it was too insignificant to warrant reversal of the cause.

It was further contended that the question of the city’s negligence and of respondent’s contributory negligence should have been taken from the jury and decided in the city’s favor as a matter of law. We deem it sufficient to say, in answer to this contention, that a careful review of all of the evidence convinces us that it was clearly sufficient to require the submission of these questions to the jury. The other assigned errors are clearly without merit, and we do not think they require discussion.

We find no prejudicial error in the record, the judgment is affirmed.

Budkin, C. J., Mount, Gose, and Fullekton, JJ., concur.