and if the plaintiff, as between himself and both companies, was lawfully where he was, and if he was guilty of no negligence in not anticipating such a collision, and in not seeking a seat with a view of its possible occurrence, the fact that he was on the platform of the car when injured by such collision is no bar to his right of action against either of the companies.'

Colegrove v. New York & II. R. Co. 6 Duer, 382.

CHAPTER XXXVII.

DAMAGES, EXCESSIVE-AGGRAVATION OF HURT OR DISEASE.

§ 204. Damage for Loss of Baggage.

§ 205. Negligence of Carrier Aggravating Hurt or Disease.
§ 206. Verdicts in Suits for Damages for Personal Injuries.
§ 207. Verdicts Held Excessive.

§ 204. Damage for Loss of Baggage.

Under the general rule determining what are proper damages recoverable, a railway company is not liable for detention caused to the owner of baggage lost or delayed on the railway, or for expenses incurred by him in looking after the baggage, the measure of damages being the value of goods lost. Where baggage has been found after suit has been entered, and has been accepted by the owner, the railway company is only responsible for the taxable costs incurred up to the date of delivery.' But where the property is lawfully carried as baggage and has a special value to the passenger, this value to him is the test and not the market value.* Baggage checks are prima facie evidence of receipt by carrier and non-delivery to passenger. The check and ticket may be examined as evidence whether first carrier is liable for loss of baggage by later carrier. Evidence that when the last carrier delivered the trunk it was broken open and part of contents gone, places loss prima facie on last carrier.*

1Provencher v. Canadian Pac. R. Co. 5 Mont. L. Rep. 5 Super. Ct. 9; Mississippi Cent. R. Co. v. Kennedy, 41 Miss. 671.

International & G. N. R. Co. v. Nicholson, 61 Tex. 550; Green v. Boston & L. R. Co. 128 Mass. 221; Denver, S. P. & P. R. Co. v. Frame, 6 Colo. 385.

Davis v. Michigan S. & N. I. R. Co. 22 Ill. 278; Chicago, R. I. & P. R. Co. v. Clayton, 78 Ill. 616.

4 Wilson v. Chesapeake & O. R. Co. 21 Gratt. 654.

'Lin v. Terre Haute & 1. R. Co. 10 Mo. App. 125.

$205. Negligence of Carrier Aggravating Hurt or Disease.

A carrier is liable to a passenger for damages for an aggravation of an injury by its negligence. The measure of damages for personal injuries caused by negligence is the injury done although it might not have resulted except for a disease or peculiar physical condition of the person injured or may have been aggra vated thereby. The same rule has been applied in many cases to a miscarriage caused by personal injuries to a pregnant woman or by frightening her.' By application of the same principle proof of the pregnancy of a woman was allowed to show aggravation of the wrong of a steamboat carrier in failing to stop at a landing for passengers where the woman was waiting to take passage and suffered from exposure."

The principle above stated is illustrated also in the following

cases:

The fact that a person was suffering from Brights' disease at the time he was injured does not impair his right of recovery against the party in fault for the injury although the injury was aggravated by the disease."

The fact that a person injured had a tendency or predisposition to cancer will not defeat the liability of the party causing the injury for a cancer which develops as a result of it."

The aggravation of damages from an injury to a person's arm 1Montgomery & E. R. Co. v. Mallette, 92 Ala. 209.

2 Lapleine v. Morgans' L. & T. R. & S. B. Co. 1 L. R. A. 378, 40 La. Ann. 661; Ohio & M. R. Co. v. Hecht, 115 Ind. 443; Louisville, N. A. & C. R. Co. v. Jones, 7 West. Rep. 33, 108 Ind. 551; Louisville, N. A. & C. R. Co. v. Wood, 12 West. Rep. 303, 113 Ind. 544; Louisville, N. A. & C. R. Co. v. Falvey, 1 West. Rep. 868, 104 Ind. 409; Louisville, N. A. & C. R. Co. v. Snider, 3 L. R. A. 434, 117 Ind. 435; Baltimore City Pass. R. Co. v. Kemp, 61 Md. 74; Stewart v. Ripon, 38 Wis. 584; Mobile & O. R. Co. v. McArthur, 43 Miss. 180; Driess v. Frederick, 73 Tex. 460; Allison v. Chicago & N. W. R. Co. 42 Iowa, 274.

3 Hill v. Kimbell, 7 L. R. A. 618, 76 Tex. 210; Barbee v. Reese, 60 Miss. 906; Oliver v. La Valle, 36 Wis. 596; Brown v. Chicago, M. & St. P. R. Co. 54 Wis. 342, 41 Am. Rep. 41; Shartle v. Minneapolis, 17 Minn. 308; Fitz patrick v. Great Western R. Co. 12 U. C. Q. B. 645; Powell v. Augusta & S. R. Co. 77 Ga. 179; Campbell v. Pullman Palace Car Co. 42 Fed. Rep. 484; Purcell v. St. Paul City R. Co. (Minn.) 16 L. R. A. 203.

4 Heirn v. McCaughan, 32 Miss. 17, 66 Am. Dec. 588. But see Pullman Palace Car Co. v. Barker, 4 Colo. 344, 34 Am. Rep. 89.

Louisville, N. A. & C. R. Co. v. Snider, 3 L. R. A. 434, 117 Ind. 435.
Baltimore City Pass. R. Co. v. Kemp, 61 Md. 74.

by an organic scrofulous tendency is within the damages for which recovery may be had from the person liable for the injury.' So a person predisposed to malarial, scrofulous, or rheumatic tendencies, but otherwise in good health, may recover damages for the development of such tendencies in an action for wrongful injuries.'

A passenger subject to chronic rheumatism may recover for injuries occasioned by a carrier's fault in taking him beyond his destination and compelling him to walk back through the rain.' The prior fracture of a leg does not affect the measure of damages recoverable for another fracture caused by negligence.*

A previous fracture of a person's arm will not prevent his recovering from a defendant who is in fault for an injury by which his arm is again broken and his shoulder and collar bone permanently injured, even if the latter injury would not have

been received if the arm had been well and sound."

Where an injury to a child was aggravated by a latent, hereditary, hysterical diathesis which had never exhibited itself before the accident and might never have developed but for it, the entire damages were recoverable from the party whose negligence caused the accident."

In other cases similar to these a party causing an injury has been held liable for a disease developing as a result of the injury but without anything to show a previous diseased condition or tendency to disease; as for instance in a case where erysipelas develops in a wound or in consequence of an injury;' so where pneumonia supervened, causing the death of a boy who had been seriously injured by a blow on the head.

8

The same rule was applied to the development of catarrh as a

'Stewart v. Ripon, 38 Wis. 584.

Louisville, N. A. & C. R. Co. v. Falvey, 1 West. Rep. 868, 104 Ind. 109.

3 Mobile & O. R. Co. v. McArthur, 43 Miss. 180.

'Driess v. Frederick, 73 Tex. 460.

Lapleine v. Morgans' L. & T. R. & S. B. Co. 1 L. R. A. 378, 40 La. Ann. 661.

Dickson v. Hollister, 123 Pa. 421; Houston & T. C. R. Co. v. Leslie, 57 Tex. 83.

*Beauchamp v. Saginaw Min. Co. 50 Mich. 163, 45 Am. Rep. 30.

result of an injury to the nose of a person who never had catarrh before.'

Of course there is no question that a disease which supervenes as the direct result of an injury is to be regarded as part of it, if there was not in fact any prior diseased condition or tendency.

In a recent case before the court in Tennessee, though the plaintiff's intestate died about a month after the injury, and there was other evidence to sustain the theory that his death was the direct result thereof, there was some evidence tending to show that he died of galloping consumption, of which he was probably though not very visibly affected when injured. In this condition of the evidence the court was asked to charge as follows: "If you find that the company was negligent, and the deceased was injured by such negligence, then did the injury cause his death, or did he die of some disease? If he died of the injury,—and by that is meant the injury produced the death, or produced a disease which resulted in death, or so weakened the powers of deceased as to render him unable to resist a disease of which he might otherwise have recovered, or with which he might have lived an indefinite time, the plaintiff should recover. But, if deceased already had a fatal disease from which there was no hope of recovery, and his death was inevitable from that disease in a short time, and the injury was slight and of such a character as to simply aggravate the disease, and he died of the disease, and not of the injury, then plaintiff cannot recover at all, for this is a suit for the death of deceased." The court gave this instruction to the jury, with this addition: "This is the law, but, if the death was hastened or occurred sooner by reason of the injury than it otherwise would, then the injury was the cause of the death." It is objected that the addition of the court to the request submitted is not the law, and a case to the contrary in terms, if not in effect, as to "hastening" the death, is cited in 25 Am. & Eng. R. Cas. 327.' There the evidence showed that a mortally wounded man had been suffered to be placed upon a train, and removed from the place where he was injured, under circumstances of, at least, slight negligence on the part of the conductor. 1Quackenbush v. Chicago & N. W. R. Co. 73 Iowa, 458.

Louisville & N. R. Ce. v. Northington (Tenn.) 16 L. R. A. 268.

"The case is from Missouri, and is that of Jackson v. St. Louis, I. M. & 8. R. C. 3 West. Rep. 236, 87 Mo. 422.