Home LONA S. W. DEGENER & another vs. THE GRAY LINE, INC.

331 Mass. 133

December 8, 9, 1953 - February 25, 1954

Suffolk County


One who is injured by the wrongdoing of another and who fails to use reasonable care to minimize the damages cannot recover from the wrongdoer for injurious consequences of such failure.

In an action for personal injuries in a District Court, there was no reversible error in the denial of requested rulings that the plaintiff was negligent in failing to secure proper medical care and treatment and that such failure aggravated her injuries, where a finding made by the judge showed that damages were awarded only for the injuries due to the defendant's wrongdoing and that nothing was awarded for injurious consequences of any such negligence on the part of the plaintiff.

TORT. Writ in the Municipal Court of the City of Boston dated June 1, 1949.

The action was heard by Tomasello, J.

Dana J. Kelly, for the defendant.

Frank A. Stout, Jr., (Thomas L. Hederson, Jr., & Alvin J. Slater with him,) for the plaintiffs.

LUMMUS, J. The plaintiffs in this action of tort were passengers for hire on a bus operated by the defendant. The defendant concedes that its operation of the bus could be found to have been negligent. At the trial a judge of a District Court found for the plaintiff Degener in the sum of $7,500, and for the plaintiff Schmidt in the sum of $14,000. The Appellate Division dismissed a report, and the defendant appealed.

The only question argued relates to the alleged failure of the plaintiffs to obtain proper medical care and treatment after the injury. One who is injured by the wrongdoing of another owes to that other the duty to make every reasonable

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effort to repair the injury and lessen the damages. If he does not, the cause of any injury which such effort would have prevented is to be found in the neglect of the person injured, and not in the original wrong. Brian v. B. Sopkin & Sons, Inc. 314 Mass. 180, 183, and cases cited. Hall v. Paine, 224 Mass. 62, 65. Noyes v. Whiting, 289 Mass. 270, 272. Ouillette v. Sheerin, 297 Mass. 536, 543.

The accident happened on June 5, 1948. There was evidence that the plaintiff Degener saw a physician in August, 1949, but that was apparently because of a fall shortly before. She testified that "the physicians who have examined her have done so at the request of her attorneys and for the purpose of testifying in this case." On July 6, 1948, she signed a statement that "I have not been to a doctor for my injuries." The plaintiff Schmidt testified "that she never had any medical treatment for her injuries; that all the doctors who examined her had done so at the request of her attorney and for the purposes of this trial." Two physicians testified that if she had received medical treatment immediately after the accident her condition would have been helped. Two other physicians testified to the same thing with respect to the plaintiff Degener.

The defendant presented the following request for rulings of law. "3. The evidence requires a finding that the plaintiffs were negligent in failing to secure proper medical care and treatment following the alleged accident. 4. The evidence requires a finding that the alleged injuries of the plaintiffs were aggravated through the plaintiffs' failure to secure proper medical care and treatment following the accident." In denying these requested rulings the judge made a special finding that "The injuries to the extent of the finding of damages made were not due to negligence in securing treatment." That special finding was in substance that the judge eliminated from his award of damages all consequences of negligent failure to obtain proper medical care and treatment. The defendant was left with all the benefit to which it was entitled from a finding that the plaintiffs negligently failed to obtain proper medical care and

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treatment. The special finding showed that nothing was awarded to the plaintiffs for injury resulting from their neglect, but that they were awarded only such damages as were caused by the negligence of the defendant.

Order dismissing report affirmed.