Washington Utilities Co. v. Wadley

Mr. Justice Robb delivered the opinion of the Court: The first assignment of error relates to the refusal of the court to direct a verdict for the defendant at the close of plaintiff’s evidence. By proceeding to introduce testimony in its own behalf, the defendant waived its right further to press this motion. McCabe & S. Constr. Co. v. Wilson, 209 U. S. 275, 52 L. ed. 788, 28 Sup. Ct. Rep. 558. But the ruling clearly was right, for, accepting -the plaintiff’s evidence as true, the motorman either saw, or by the exercise of reasonable care should have seen, him in ample time to' have prevented the accident. Plaintiff’s declaration alleged that the accident occurred “at or near the intersection of Water street with Fourteenth street, S. W.in other words, just east, instead of just west, of said Tidal basin bridge. It now is suggested that there was a variance between the allegations and the proofs as to the place of the accident. Obviously, this objection comes too late. Had the‘point been made in the trial court, the defect, if there was one, could have been cured by amendment. Campbell v. United States, 224 U. S. 99, 56 L. ed. 684, 32 Sup. Ct. Rep. 398. That this is an afterthought is clear from an examination of the evidence which, as previously noted, shows that there was no misunderstanding as to where the accident actually took place. This court has ruled that a street railway company is liable [181] for personal injuries sustained by one who bas negligently exposed himself to the risk of injury if the motorman actually saw him, or could have seen him by the use of reasonable diligence, in time to stop the car. Washington R. & Electric Co. v. Cullember, 39 App. D. C. 316; Washington-Virginia R. Co. v. Himelright, 42 App. D. C. 532. The charge of the court in the present case was in strict accord with the rule laid down in the above cases, and we therefore shall pass over the assignments of error directed to this question. A general exception was noted to the court’s charge on the question of damages. It now is insisted that there was no competent evidence tending to show that plaintiff received permanent injuries to his back or thumb, and hence that the element of damages for future disability should have been withdrawn from the jury. We many times have ruled that an omnibus exception of this kind will not be considered. The trial court is entitled to know the ground of the objection, where it may not be inferred from the objection itself. However, the plaintiff, testifying two years after the accident, stated in effect that his thumb was permanently injured and that he still had pains in his back at times. The physician who attended him at the time of the accident testified that his thumb was dislocated and that the muscles of the back were sprained; that he treated plaintiff for several weeks, during which time he “was suffering intense pain with his back. * * * That a sprain may last a lifetime.” He further testified that “he [plaintiff] is still suffering from his back;” although the witness would not say that the injury was permanent. This evidence was sufficient to warrant the charge as given. Washington R. & Electric Co. v. Cullember, 39 App. D. C. 316, 326; Horowitz v. Hamburg-American Packet Co. 18 Misc. 24, 41 N. Y. Supp. 54; Chicago & E. I. R. Co. v. Filler, 195 Ill. 18, 62 N. E. 919; Union P. R. Co. v. Jones, 1 C. C. A. 282, 4 U. S. App. 115, 49 Fed. 343. It is further objected that the court erred in charging the jury, in reference to the validity of the release, that it was not necessary to find “that the agent was guilty of any inten [182] tional fraud in the matter.” A direct answer to this assignment is found in Washington R. & Electric Co. v. McLean, 40 App. D. C. 465. The further point now is made that the charge was not sufficiently explicit on this question. That objection should have been raised in the trial court, and, as it was not, it will not be considered here. The judgment must be affirmed, with costs. Affirmed.