OHIO AND MISSISSIPPI R. Co. ປ. HECHT. (Indiana Supreme Court, June 16, 1888.) Passenger-Personal Injuries-Supervening Disease-Pleading.-Under a complaint in an action for personal injuries which alleges that plaintiff was so injured that he "suffered great pain and anguish and became sick, sore, and lame, and was confined to his bed and room from thence hitherto," evidence that the plaintiff is suffering from Bright's disease induced by the injury complained of is admissible. Same-Instruction-Contributory Negligence. An instruction in an action for damages for personal injuries that It is not enough that plaintiff may not have used ordinary care, but such want of care must have contributed to the injury to bar the plaintiff from recovery if his right to recover is otherwise shown by the evidence," is not erroneous. Same-Damages-Occupation of Plaintiff. In such an action, the jury may, in estimating the damages, consider the occupation of the plaintiff. APPEAL from Circuit Court, Jefferson County. Action at the instance of Abraham Hecht against the Ohio & Mississippi R. Co. for damages for personal injuries. At the trial, evidence was admitted over defendant's objection that plaintiff was suffering from Bright's disease, induced by the injuries he had sustained. Defendant appeals from a judgment for plaintiff for $2500. H. D. McMullen and John McGregor for appellant. Facts. ELLIOTT, J.-The appellee bought a ticket, entitling him to passage on the trains of the appellant, and while at the appellant's station at North Vernon, for the purpose of entering one of its trains, as he was entitled to do under the ticket he had purchased, he was injured, without any fault on his part, by stepping into a hole in the platform, which the appellant, in disregard of its duty, had negligently permitted to remain unprotected. The complaint thus describes the injury sustained by the appellee, and states the damages occasioned by the wrong of the carrier: "The plaintiff was violently thrown down, and upon his valise, which he was carrying in his hand, and his foot and ankle were sprained, strained, and otherwise greatly injured and bruised, injuries proxi mately result ing. and the ligaments and tendons of plaintiff's foot were strained and drawn and permanently injured, so that the plaintiff suffered great pain and anguish, and became sick, sore, and lame, and was confined to his bed and room from thence hitherto, and was wholly incapacitated from attending to his usual vocation, and he laid out and expended a large sum of money, to wit, $ for doctor's fees and medicines and nursing, in attempting to be cured of said hurt, and received a permanent injury, which will lame him for life, and always Plaintiff en- impede his successful prosecution of his business; titled to com- whereby he has sustained damages in the sum of pensation for five thousand dollars." The complaint makes a case entitling the appellee to full compensation for the njury which proximately resulted from the appellant's wrong. Where a disease caused by the injury supervenes, as well as where the disease exists at the time of the injury, and is aggravated by it, the plaintiff is entitled to full compensatory damages. The decisions upon this point are numerous and harmonious. Railroad Co. v. Wood, 113 Ind. 542 (note, 33 Am. & Eng. R. R. Cas. 530), and cases cited, 567; Railroad Co. v. Jones, 108 Ind. 551; s. c., 28 Am. & Eng. R. R. Cas. 170; Railroad Co. v. Pitzer, 109 Ind. 179, and cases cited, 188; s. c., 25 Am. & Eng. R. R. Cas. 513; Railway Co. v. Falvey, 104 Ind. 409; s. c., 23 Am. & Eng. R. R. Cas. 522; Railroad Co. v. Buck, 96 Ind. 346; s. c., 18 Am. & Eng. R. R. Cas. 234; Railroad Co. v. Riley, 39 Ind. 568; Keyser v. Railway Co., 33 N.W. Rep. 867; s. c., 31 Am. & Eng. R. R. Cas. 399; Quackenbush v. Railway Co., 35 N. W. Rep. 523; s.c., infra. The complaint is sufficiently comprehensive to enComplaint title the plaintiff to give evidence of the nature and consequences of his injury. In Ehrgott 7. Mayor, sive-Evidence 96 N. Y. 264; s. c., 6 Am. & Eng. Corp. Cas. 631, of injuries. it was said by the court: "Upon the trial, plaintiff gave evidence tending to show that he had a disease of the spine, of a permanent nature, as the result of his injuries. This evidence was objected to by the counsel for the city, on the ground that the plaintiff had not alleged such a result from the injury in his complaint. We think the complaint is sufficient. It alleges that he suffered great bodily injury; that he became, and still continues to be, sick, sore, and disabled; that he was obliged to spend large sums in attempting to cure himself, and was prevented for a long time from attending to his business, and that he was otherwise injured, to his damage $25,000. These allegations are sufficient to authorize proof of any bodily injury resulting from the accident; and, if the defendant desired that they should be more definite, it could have moved to have them made more specific, or sufficiently comprehen for a bill of particulars." Chief Justice Campbell said in Johnson v. McKee, 27 Mich. 472: "Where the defendant was informed that damages were sought for sickness and disorder, and their attendant expenses, as well as for wounds and bruises, he was bound to expect evidence of any sickness, the origin or aggravation of which could be traced to the act complained of." In the case of Delie v. Railway Co., 51 Wis. 400; s. c., 5 Am. & Eng. R. R. Cas. 464, the question before us was carefully examined and well discussed; the court saying, among other things, "that it is not claimed on the part of the appellant that the complaint does not state a cause of action. If the allegations of the injury are sufficient to entitle the plaintiff to recover anything more than nominal damages, then it seems to us very clear that he is entitled to recover such damages as he actually sustained by reason of all injuries to his person resulting from the accident, and that, in order to enable the jury to estimate his damages, he must be permitted to show what those injuries in fact were. We think that in cases of this kind, if the defendant does not desire to have the plaintiff make his allegations, as to the nature of his injuries, more definite and certain, and does not ask to have it done by a proper motion for that purpose, he must come prepared to meet any proof which the plaintiff may offer, which shows, or tends to show, the real nature of the injuries which were the direct result of the accident. This, we think, was the rule held, even under the old practice, by this court in Bichard v. Booth, 4 Wis. 74-92. In that case the court held that, under allegations as general as in this case, the plaintiff might show, as one of the results of the battery, that his shoulder-blade was broken. The present chief justice, in his opinion, says: 'It was contended on the argument that the fracture of the shoulder-blade should have been specially and circumstantially set forth, in order to apprise the defendant of the facts to be proved, and that it was a surprise upon him to admit proof of it under the general language of wounding, beating, bruising, etc.; and, although we think such a special statement of the injury might have been very proper, yet we cannot say it was essentially necessary. As already stated, we can but view that injury as the natural and necessary result or consequence of the battery. That wrongful act was the efficient producing cause of the fracture and loss of health, and we think it is sufficient to allege it in this general manner.' See also Schmidt v. Pfeil, 24 Wis. 452-455. If, under the old rules of pleading, under general allegations of wounding, bruising, and beating, the plaintiff could be permitted to show all of the injuries to the person which resulted from the battery, there is much greater reason for allowing such evidence under the code 34 A. & E. R. Cas.-29 practice, which gives the defendant the clear right to have the general allegations made more specific and certain if he desires so." At another place it was said: "But counsel for the appellant urges that, as the hernia did not make its appearance until nine months after the accident, it cannot be said that it was the result of the accident, and certainly not the direct and immediate result thereof, and therefore evidence concerning it should not have been admitted under the allegations of the complaint. If the hernia had appeared immediately after the accident, under the rules above stated, there would be no doubt as to the right of the plaintiff to prove the facts as one of the results of the injury; and we think the mere fact that it did not become apparent to the plaintiff until some time after can make no difference as to the right of the plaintiff to show that it was in fact caused by the accident." Our own decisions declare the rule substantially as the cases we have cited. In Railway Co. v. Selby, 47 Ind. 471, it was said: "The complaint charged that the plaintiff was generally bruised, hurt, and injured. Under these general allegations, the plaintiff was entitled to prove any and all injuries which he received, and which were the natural consequence of the wrongful act of the defendant." It was said by the court, in_the_case of Railway Co. v. Savage, 110 Ind. 156, that "after Dr. Young had, as a witness, explained the nature of the injury which the plaintiff had received, and the remedy resorted to for his relief, he was, over objection of the defendant, permitted to say the effect of the injury would be very deleterious to the plaintiff's nervous as well as to his general system, and that the injury would thereafter have an injurious effect upon his strength and power of physi cal endurance. It is insisted that there was nothing in any of the averments of the complaint which justified the admission of such evidence, and for that reason its admission was erroneous. As will be seen by a recurrence to the complaint, it concluded with the averment that the plaintiff had thereby become wholly crippled and maimed, and prevented from actively pursuing his business, for life.' Under our decided cases, that averment was quite sufficient to let in the evidence complained of." This is the doctrine declared in the cases of Town of Elkhart v. Ritter, 66 Ind. 136; Car Co. v. Parker, 100 Ind. 181 (s. c., note, 21 Am. & Eng. R. R. Cas. 514); Turnpike Co. v. Andrews, 102 Ind. 138; Railway Co. v. Falvey, supra. The case of Brown v. Byroads, 47 Ind. 435, cited by the appellant, decides nothing upon the point here in dispute. The case of Teagarden v. Hetfield, 11 Ind. 522, simply decides that a complaint praying damages for unlawfully killing a mare does not entitle the plaintiff to recover, in addition to the value of the mare, compensation for taking care of two colts which were suckling the mare at the time she was killed. The pervading fallacy in the argument of appellant's counsel is that of undue assumption. He unduly assumes that the illness and permanent injury resulting from the tort are to be deemed special damages. On this point it is said, in a very late edition of an excellent text-book, that "there is a substantial uniformity of doctrine that every such subsequently developed disease which would naturally ensue from the injury, and which cannot be shown to have resulted from a sufficient independent cause, must be imputed to the author of the original injury. Though the plaintiff be afflicted with a disease or weakness which has a tendency to aggravate the injury, defendant's negligence will still be held to be the proximate cause; and the defence that the sufferer died from an independent disease is not made out, unless it is clearly shown that death must have ensued independent of the injury. Aggravation of an existing disease may be allowed for in the damages awarded." 2 Shear. & R. Neg. (4th Ed.) § 742. This is substantially the doctrine of the cases already referred to, and to them may be added the cases of Jucker v. Railway Co., 52 Wis. 150; Railway Co. v. Harris, 122 U. S. 597; Railway Co. v. Rosenzweig, 113 Pa. St. 519; s. c., 26 Am. & Eng. R. R. Cas. 489; Railway Co. v. Leslie, 57 Tex. 83; s. c., 9 Am. & Eng. R. R. Cas. 407. tory negli The court gave to the jury this instruction: "It is not enough that plaintiff may not have used ordinary care while on the defendant's platform, and while he was about to enter the defendant's cars (if such want of Instruction as care is proved); but such want of care must have to contribucontributed to the injury, to bar the plaintiff from gence. recovery, if his right to recover is otherwise shown by the evidence." If this instruction stood alone, it would not, we incline to think, warrant a reversal; for it is well settled that a plaintiff's negligence does not preclude a recovery unless it contributed to his injury. It is not mere .negligence that bars a recovery, for the negligence must also be contributory. Nave v. Flack, 90 Ind. 205; Railway Co. v. Richardson, 66 Ind. 43-48; 1 Shear. & R. Neg. (4th Ed.) § 94; Whart. Neg. $ 703; Cooley, Torts, 679; Beach, Contrib. Neg. 3. But the instruction must be considered with others upon the same point, and, when thus considered, it is quite clear that the appellant has no just cause of complaint; for the other instructions clearly and explicitly directed the jury that the plaintiff could not recover unless he proved that he was not guilty of contributory negligence. In one of the instructions given, the court told the jury, among other things, that |