The record-union., 1891-01-23
SUPREME COURT DECISIONS.

MI AAhnA OOOAl OuOlNlUNnt
Filled January 12 1911
Appeal from Superior Court Los Angeles
county,. w. Mckinley, Judge
For appellant, Victor Montgomery, o. Cas-
For respondents, Charles S. McKelvey.
DEPARTMENT TWO.
McFADDEN & WIFE, Respondents
SANTA ANA o. q T. ST. RY. Co., NO. 1913
Appellants.
Action for damages alleged to have been sus-
tanned by a personal injury to the wife alone,
through the negligence of defendant.
On May 26, 1883, the defendant was a cor
poration owning and operating street rail-
road running east and west through the center
of Fourth street in the city of Santa Ana, in
Los Angeles County. On that day it caused an
excavation to be made in that street about six
leet wide, fifty feet long, and ten inches in
depth. on the north side of the railway, par
allel with 1t, and about six feet from it. for the
purpose of constructing switch or turnout
to be connected with the main railway; and,
for the construction of which it had per-
mission from the city authorities.
II Is alegcdin the complaint that the exca-
Sation was dangerous to travellers ON the street
during the night time, unless properly guarded
and lighted; and that it was The duty of the
defendant TO guard and light it, so as tc warn
travellers OF the danger, etc, which the defend
ant neglected to do ON the night of May 26,
1858,
The complaint then proceeds as follows:
oiif W VII, Tic -Otil U:iy Oh May, 1888,
the plaintiffs herein We're lawfully driving
| along the same, and they, the plaintiffs, had
no warning OF, or notice of, the existence of
the aforesaid excavation and distractions
and they, the plaintiffs, saw no lights or bar
riers about the said excavation and obstruc-
tons, and without any fault of either of the
plaintiffs, they, the plaintiffs. came in col
lision with the said distractions, and We're
dy'olc3, over the same into the ercdudtoa afoTe-
said, whereby Flora Mciadden sustained great
injuries in her person, ana internal injuries by
which her womb was displaced and by reason
OF said injuries TO her person and said internal
injuries, she was confined to her bed for many
months;ind endured great physical and mental
suffering. Her health is injured ana impaired
thereby, and the plaintiffs are informed and
believe that the injuries sustained by Flora
Mcfadden, in her person and to her health,
are permanent and tor life, and that the same
were caused by the gross negligence, default
and carelessnesS OF the defendant herein by
reason of all which the plaintiffs are damaged
in the sum of S12,000.o
The answer of the defendant denies the al
legged injuries to the plaintiff Flora; denies the
alleged negligence on its part; and alleges
contrlbutory negligence on the part of the
plaintiffs.
The case was tried by q Jury Verdict and
iudgmentfor the plaintiffs for 1000. The
defendant appeals from the Judgment, and
from an orGer denying its motion for u new
| trial.
| The principal question for decision arises
| upon instructions to the jury TO the effect
| OF contributory negligence, if any there was
| on the part of the husband alone.
| At the request of the plaintiff the court in
| structed the Jury that il they found that the
plaintiff Flora was injured by the negligence
of tie defendant, without any negligence on
| her part, and that the negligence of her hiis-
| band, ifany, only contributed to the injuries,
! the jury could not attribute the husbands
! negligence to her, ana should assess such
damages rs will compensate her for injuries
proSimateiy caused by the negligence of the
defendant. And again; "If you find from the
evioence that the negligence of Robert Nc
| FadGen, ifany, only contributed to the injury
complained OF, if any was sustained, his neg
| llSence cannot be imputed to Flora Mcl'ad-
| den, and must not be regarded rs her negli-
gence.
| Defendants counsel excepted to these in
! structions, and requested the court to instruct
| the jury that conIributory negligence of the
| husband, ii any, was imputable to the wife;
and, under the circumstances Of this case,
would prevent a recovery; which the court
refused to give
1 think The court erred in giving these in
structions, and in refusing to instruct, sub
stantially as requested by the DEFENDANTS
379; Carlisle VS.. Sheldon, 38 Vt. 40; Calm
VS.. Ottumwa, 60 Iowa, 429; Huntoon vs.
tributory Negligence PIP. 1l3, IL and 2S49
personal injury, as well as tSe M
rty, and may be regarded as a chose in
action, C. B. 4 @. r. r. Co. VS.. Dunn, 3 Free
man Hi. $50; Anderson's Dictionary OF Law,
| and if this right to damages is acquired by the
wife during marriage, it, like the damages
when recovered in money, is, in this State,
| community property of the husband and wife,
! Civil Code, Sections 162, 1863, 64 and 169)
of which the husband has the management,
control and absolute power of disposition
| other than testamentary. &C. C. Sec. 172)
| Consequently, the wife cannot sue alone for
damages on account of an injury to her per-
son. as She is permitted to do when the action
concerns her separate property" &c. c. p, See.
| $40; Tell VS.. Gibson, sc Cal, 247) In these
respects our codes differ from the laws OF
| those States in which the cases cited by APP
pellants were decided; wherein the right to re-
| for q mar i'm, tn In wifi ,,,I
| the money recovered, are deemed her separate
| property. IN the case of Fiori VS.. City of ST.
Louis g Mo. App. 231) the husband and
| wife sued for q personal injury to the wife
! alone, and the trial court instructed the jury
| in effect that if the husband was guilty of neg
| iigence directly contributory to the injury
| there could be no recovery in the action. Of
| this instruction the appellate court said: I'VE
| do not SO understand the law. The contiibu
covery where the plaintiff is the injured
| party, and the recovery is for his benefit. But
mere the husband is merely q formal party
the cause of action belonging to the wife
Under our law (Acts 1875, D. 6) ANY prop
erty, including rights in action,
which has grown out of any violation of the
personal rights of IL Jenae cOreTt, is her separ-
ate property and under her sole control, and
is not liable for the debts of her husband"
In Platz VS.. Cohoes ga Hun, 1ol) the de-
cision that the negligence of the husband
could not be imputed to the wife, in Il case
like this, was put solely upon the grounds
that the wife was mere passenger in her hus-
joint interest acith her, dndtUaS, ,Uay idel,-
tilted toih her. On appeal from this decision
OF the Supreme Court, the Court of Appeals
held that the question, to contributory
negligence of the husband. did not arise, and
declined ne to decide it, ls9 \; Y; 219).
3 Freeman Qll) $50, it held that the
| right of the wife to sue for an injury to her
person was her separate property under n
statute of that State, providing that all prop
erty shall be separate property OF The wife
(which any married woman during cover
ture, acquires in good faith, from any person
other than her husband, by descent, devise, or
otherso;se."
In Shearinan and Redfield on Negligence
{4 I'D. Sec. GO 1t is said "But III New York
Missouri and other states where the change
has been radical and married women have
| right to recover, in such cases, damages for
| their otcn separate Use it Is held that the neg
ligence OF the husband while in company
with his wife, is not chargeable to her. unless
she encouraged him in it. orotherwise concurs
in it," No other authority is cited for this
than the cases above considered
2. The appellants counsel complain that the
scope OF their cross-eNanination of PLAINTIFFS
witnesses was too much restricted by the
court. OF the numerous exceptions taken on
this ground, think the following should be
sustained:
First--After the plaintiff: Flora, had tosti-
fed on behalf of PLAINTIFFS as to the injury
and the pain suffered by her Immediately
thereafter, defendants attorney on cross-eX-
animation asked the following questions:
you?n
Answer-I was conscious of a very severe
pain.
Question-Well, you went home that night
and didn't call doctor?
Mr.. McKelvey--Wc object. I don't think /.
responsive to the direct examination.
The court sustained this objection, and the
defendants counsel excepted.
Second-Dr. Ball, as an expert, testified in
chief, on the part OF the plaintiffs, that he
visited the plaintiff Flora, about two weeks
after the injury, in consultation with Mrs
DIR. Howe, the attending physician, and fur
! tner testified That he examined the lnafient