, 1892-05-04
A CASE REVERSED.
Court Passes on a King
County Appeal.
An Action by Husband and wife
for Damages Caused by alleged
Negligence on a Street Railway.
CONTINUED from Tuesday )

for Damages Caused by Alleged
Negligence ON street Railway.
CONTINUED from tuesday,
The appellant claims contributory neg
ligenee on the part OF Mrs. Hawkins, IN
taking seat on the outside of the s'dum-
my" when she could have sat safely on the
inside of the trail car This we cannot
support. The seats on the Dummy We're
for passengers, and anyone sitting there
had the same right to be protected against
the negligence of the company's servants
as though he had sat inside.
The original claim in this case was for
special damage to dress worn by Mrs.
Hawkins, in the sum of $25 $40 for loss of
her earnings as bath-tender, and 100000
general damages. Bat by the third
amended and supplemental complaint,
filed after the delivery of her child, the de-
mand was raised to $25, ,000. We can see no
reason for this very great increase in
the alleged damage, nnless it was upon the
theory that if the death of the child could
be shown to have been caused by the in
jury to Its mother, that fact would be
ground for an Enhancement of the damage.
Nor can we upon any other theory account
for the vast amount of medical testimony
adduced to- show that the death of the
child some three weeks before its delivery
was attributable to the blows and fright in
ficted upon Mrs. Hawkins, four months
and nine days before its delivery. Had
this testimony been coupled with any at
tempt to show that in giving birth to the
child, the mother had suffered any unusual
pain or Illness, or that by the death of the
child and her subsequent carriage
of it for several weeks in
that condition, she had been subjected to
extraordinary distress Of body or mind, we
might discern some purpose in it. But it
is admitted that the mere loss of the child
by its death ell nyentre sa mere is not re-
coyerable damage and for aught that APP
pears there was no perceptible difference
in the amount Of pain and illness attending
the delivery of the child dead from what
there would have been had it been alive
1t may have been imagined that there
would be, but there was no testimony that
there was. 1t appeared that the child on
May 18th must have been at least four
months advanced. On that day the acci-
dent occurred, after which Mrs. Hawkins
went home without assistance. She was
Immediately attended by physician who
found symptoms Of miscarriage But af-
ter about ten days of quiet and treatment
the danger apparently passed away, and
she resumed her accustomed household du-
ties, using great caution and care, how
ever, against any imprudence which might
bring ON the dreaded miscarriage She
continued nervous and anxious, and suf-
fered some pain and had some faint spells
but the child was alive, and remained so
until a certain time some four weeks be-
fore October 9th, after which no signs of
life were observed. No physician was
summoned until the day Of her delivery,
and the confinement lasted some fourteen
hours. 1t was about two months later be-
fore she could resume her household du-
ties. Previous to the accident she was
healthy woman and had none of the symp-
toms described.
Upon these summarized facts the jury
was to find what pecuniary injury the
plaintiffs suffered from the tort committed
against Mrs. Hawkins, not in any sense
against the child. Cases are cited to show
that damages have been recovered for a
miscarriage.
Shartle VS.. Minneapolis, II MINI. 308.
Barber VS.. Reese, so Miss. 9O6.
Brown VS.. Railway Co., 81 Wis. 342
But in all such cases it will be found that
the recovery was for the ill-health and suf-
fering attendant and consequent upon the
miscarriage, and not in any sense for the
loss of the child.
In this case, however, respondents own
medical experts say there was no miscar-
riage, but premature birth caused by the
death of the child from insufficient nour-
ishment, referable probably to the injury
and fright occurring to the mother III MAY
previously. Now time is not considered
in establishing liability for injuries, except
that when what are claimed to be effects of
oil INJURY appear stG d p6IlOQ remote from
the injury the prOximateness of the cause
is more difficult to prove. And so we have
no doubt that if Mrs. Hawkins shows i'm
palrment of health and suffering, growing
out of the death and premature birth Of
her child, which would not have attended
its birth at the usual time either alive or
dead, and also that the child's death is at
tributable to negligent injury which she
received, respondents can recover for her
suffering and impaired health. But she
must show the injury by appropriate evi
dence, and the mere proof that the child
died and was prematurely delivered, as a
result of the accident would not be suf-
fcent to presume substantial damage there
from.
We are led to say this much from be-
lief that from the way the case went to the
jury, the death of the child probably occu-
pied large place in its calculations, and
tended to cause the return of somewhat
excessive verdict, upon the showing of act
ual damage, though we do not wish it un-
derstood that if the size of the verdict were
the only ground of objection we should on
that account reverse the case. 1t is mat
ter Of common knowledge that every
woman who is enciente, and particularly
one who is so for the first time, is more or
less prone to nervousness and anxiety, as
well as that the travail Of childbirth is
time of suffering, illness and danger, SO
that it's not Just to impose upon the merely
careless tort feasor without previous knowf
edge Of her condition. liability for more of
her trouble than he has actually caused.
Judgment reversed and cause renandsd
for a new trial, STILES, ].
We concur: Anders, q. j.; Dunbar J.
Hoyt did not sit at.the hearing, he being
disqualified.
concluded tomorrow, with dissenting
opinion
Heart Disease.
palpitation, pain in side, short breath OPP
preston, asthma, swollen ankles, are cured