, 1892-05-03
A CASE REV ERSED.
Supreme Court Passes on a King
County Appeal.

County Appeal.
AN Action BY Husband and wife
for Damages Caused by Alleged
Negligence On a street Railway.
CONTINUED from Monday.)
The departure from the common law, has
the most Of the states, been in the direc-
tion of securing to the wife the right to sue
alone for injuries to her, and giving her the
fruits of her action as her separate property.
In others, as Wisconsin, (Rev. Stats, Sec.
$3.50, } husband and wife may recover in the
same action for all the injuries to both, in
case of a tort committed against her.
The instruction requested by the appell-
ant was based upon the common law rule,
and would have been proper instruction
were the common law in this particular in
force here. But inasmuch as the right to
sue for a tort which one has suffered is a
chose in action, and therefore property,
IN those states where, as here, all property
acquired by either spouse, otherwise than
by gift, bequest, devise or descent is conn
mon or community property, this chose in
actlon,is sueable by thatmember of the COM
munity who has the disposition OF the COM
munity personality. So in Texas is held
that the wife is not either a necessary or a
proper party to an action for an assault
committed upon her.
Ezell VS.. Dodson, go Texas 331.
Gallagher VS.. Bowie, 66 Texas 265.
And in California the husband is held to
be necessary party since he has the man
4 agement and power of disposition of the
right to damages as part Of the common
property.
McFadden VS.. Santa Anna etc., Ry. Co.,
25 Pac. r. 681. Our statutes are substan-
TALLY the same in this respect as those of
Texas and California, and we see no reason
why we should follow the decisions of
those states.
In this case, therefore, the husband was
the only necessary party, though the wife,
by sec (code of 1871 is a proper party,
and in this action all of the damage natur-
ally flowing from the injury complained Of
are recoverable. The first element of those
TO be considered is that directly connected
with the person Of the wife, the injury and
its subsequent consequences whether per
maneNt or temporary, and her pain, suffer-
ing, wounded feelings, ETC.; next the cost
of her nursing, medical attendance and
medicine, which, although they could, at
common law, be recovered by the husband
alone, are with us presumptiYely expenses
incurred and paid by the community; and
lastly the loss Of the wife's services in the
household. Under this ruling it is appar-
ent that the instruction asked by the de-
tendant was properly refused, and that
given by the court as above was substan-
Gldlly COIIGCJ
The second point made by appellant is
that the court erred in instructing the jury
thus: 1T is the law that where passen-
ger being carried on train is injured with
out fault Of his own, thereis legal presump-
ton Of negligence, casting upon the carrier
the burden Of disproving it," Such IS not
the law as laid down by very numerous
authorities,
The language Of the charge III question
was apparently taken from Cooley on Torts
End Ed. p. 796, where it is quoted with APP
provaI, as being we'll said in a Pennsylvania
case. There follow several lines in the
text, however, which qualify the quotation
and make it clearly the law when applied
to the cases intended to be covered by it.
These additional lines are also taken from
the Pennsylvania case, but without credit
by quotation. The case was Meir VS..
Pennsylvania r. R. Co., Pa. st. 225, where
the esaXactlanguage is: "Prima facie, where
a passenger, being carried on train, is in
ilred without fault of his own there is q
legal presumption of negligence, casting
upon the carrier the onus of disproying it.
This is the rule when the injury is caused
by a detect in the road, cars or machinery,
or by want of diligence, or care in those
employed, or by any other thing which the
company can and ought to control as a
part of it's duty to carry the passenger
safely but this rule of evidence is not
conclusive"
NO Case ClG6u TO U.S. OF GQdG- we nave .Q6eD.
able to lind, goes further than this. See
Patterson's railway accident law chapter
vi, page 439 ct seq.
In Federal Street, etc., Ry. Co., VS. Glib
son, SO Pa. st. 50, a passenger on the street
car OF railway company was struck and
injured by passing load Of hay. The
charge OF the trial court was that if plain
tiff was without fault he was entitled to re-
cover, unless the defendant satisfied the
jury by the weight of evidence that the in
jury arose from an accident which could
not be prevented by the utmost skill, fore
sight and diligence on the part Of the
driver. Held, error, and the court said:
'Itis true in many cases the mere fact of
injury to passenger raises the presump-
ton of want OF care on the part of the rail
road company Such is the case when the
injury results from defective track, cars,
machinery or motive power. Here there
was no priyity between the company and
the driver of the wagon.
We see nothing in The case which relieved
the defendant IN error from proving negli-
gence, or that threw on the company the
burden Of disproving it."
Applying the just rule thus laid down to
the case at bar, we do not see how the
charge given by the court, even had it been
modified as quoted from Meier VS.. Railway
company supra could have been pertinent.
The nature Of the accident was not such as
to warrant saying anything about the ma
chinery, and the question whether the SER
wants of the appellant violated any duty to
Mrs. Hawkins in allowing the dummy to
run so close behind the wagon as to touch
or push it, SO that when the wagon was
turned into the side street by the driver it
was upset, was the very question which
the jury was to decide upon the proofs.
They were to say whether under all the cir
cumstanees there was negligence in so
running the car, at the rate of speed at
which it Travelled, or in not stopping the
car when the wagon slackened its pace in
turning out But if the fact of injury was
to determine the negligence prima facie the
jury would naturally stop its consideration
Of the other questions, and look to the de-
PENDANTS evidence to see whether there was
anything to negative the presumption de-
clared by the court.
For this error the case. must be reversed.
But there are some other matters which it
is necessary to advert to in view of another
trial.
ITO be continued.
A Lumberman's Rendezvous.
cJI