Ketchum v. Fillingham ( 1910 )

Brooke, J.

(after stating the facts). We cannot agree with the claim of defendant that plaintiff was, under her own testimony, guilty of contributory negligence as a matter of law. If her testimony is to be believed, she acted with ordinary prudence. Under all the testimony, it was, at most, a question of fact for the determination of the jury under proper instructions, which were given.

With reference to defendant’s negligence, the court charged the jury as follows:

<c It [the automobile] entails on the man or woman who runs it the duty of keeping it under control, especially at the street intersections, and not to run it at a rate of speed which would be dangerous or which would contribute to its getting from under his control. * * * He [defendant] was bound to use just such ordinary care, prudence, and caution as the ordinarily prudent man would have used under such circumstances. This duty includes the duty of having his automobile under control when approaching and passing street intersections, and of operating it at such a speed as is reasonable and proper, having regard to the traffic conditions of the street and the safety of the people.”

It is most strenuously urged by defendant that the charge as a whole does not define the issues of negligence, nor limit the jury to the consideration of the specific negligence charged in the declaration. We think the portion of the charge quoted above, taken together with the definition of negligence in another portion thereof, and the repeated admonition of the court that the plaintiff could recover only if she convinced the jury by a preponderance of the evidence that she was free from negligence and that her injury resulted from the negligent act of the defendant, fairly instructed the jury upon the law involved in this phase of the case. In her declaration plaintiff set out that she was injured—

“ By having her general nervous system severely shocked, her head and shoulders and back severely strained and wrenched, and thereby causing curvature of the spine, and her right arm and hand severely injured, and also inflicting other painful and severe injury to the body and abdomen, and thereby so bruising plaintiff in her left side as to cause a swelling or abscess, of a tumorous nature to form, which, has caused plaintiff to suffer,” etc.

It will be noted that no claim is made in the declaration that plaintiff had suffered an injury to her legs. Upon her direct examination she testified as follows:

“Then I had nervous chills, hundreds of them. I shook just like a leaf day after day and formed a large lump under my right knee. It remains there yet, and my feet are numb. They are just like no feet, just as if they were coming to from being asleep.”

Plaintiff’s husband, on direct examination, testified:

“When I was giving her a bath, I discovered those lumps under her knee. They were under one knee. They were about as large as the bottom of that tumbler and oval, and on the other one was about the size of a guinea egg, a walnut, or something of that kind.”

Dr. Reynolds, plaintiff’s physician, also upon direct examination testified:

“Q. Now, with reference to the leg, let me call your attention. Did you discover anything under her knee ?

“A. There is a bunch there I think. I was thinking there might be two, but I guess there isn’t but one.

“ Q. What was that caused from, Doctor, if you know ?

“A. Well, it is an enlargement of a gland, but I don’t know what caused it in this case. It might have been an injury and might not.”

All the foregoing testimony seems to have been admitted without objection on the part of the defense.

When the proofs were closed, however, defendant preferred the following request:

“ (14) No claim is made in the declaration of damages for injuries to plaintiff’s knees; hence no damages can be awarded for such injuries.”

This request was refused, and the court charged:

“ The damages claimed by the plaintiff in her declaration are for the pain and suffering from the time of the injury up to the present time, whatever she may have suffered physically and mentally, by reason of her injuries or the nervous condition from the time of the accident up to the present time she is entitled to recover for if you find for the plaintiff.”

We think this instruction erroneous. It has been repeatedly held that recovery may not be had for injuries not pleaded. Fuller v. Mayor, etc., of Jackson, 92 Mich. 201 (52 N. W. 1075); Hally City of Cadillac, 114 Mich. 99 (72 N. W. 33). It cannot be said, as claimed by plaintiff, that in making up their verdict the jury were not influenced by this testimony. At the time of the trial the swellings beneath the knees afforded practically the only external evidence of plaintiff’s injury.

Defendant’s 15th request, as to the credibility of witnesses, was in proper form, and should have been given.¹ Knowles v. People, 15 Mich. 408; Hamilton v. People, 29 Mich. 173; O'Rourke v. O'Rourke, 43 Mich. 58 (4 N. W. 531); Gerardo v. Brush, 120 Mich. 405 (79 N. W. 646).

The judgment is reversed, and a new trial granted.

Bird, C. J., and Ostrander, Moore, and Blair, JJ., concurred.