
    CITY OF DUNCAN v. NICHOLSON.
    No. 16778
    Opinion Filed July 6, 1926.
    1. Negligence — Contributory Negligence— Harmless Error in Refusing to Allow Amendment |of Answer.
    No prejudicial error is committed by refusing to permit defendant to amend answer to allege contributory negligence, where court, by instructions, submits plea of contributory negligence to jury.
    2. Same — Personal Injuries — Measure of Damages Where Injured: Person Neglects to Seek Medical Attention.
    One who sustains a personal injury, and fails or neglects to use ordinary care, after having knowledge of the injury, in procuring timely medical or surgical treatment, and, by reason oí such failure, bis condition is rendered worse than it wG-uld bave been if be bad used sucb ordinary care, cannot recover tbe increased damages resulting from sucb failure, but is entitled to' recover only sucb damages as be would bave sustained bad be not failed or negleeced to obtain medical or surgical treatment. Held, that verdict of jury was authorized under' this rule.
    3. Same — Instructions.
    Instructions examined, and no prejudicial error committed in respect thereto.
    (Syllabus by Jarman, O.)
    Commissioners’ Opinion, Division No. 2.
    Error from District Court, Stephens County; M. W. Pugh, Judge.
    Action by Hattie Nicholson against tbe City of Duncan, Okla. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    J. AY. Marshall, for plaintiff in error.
    AVilkinson & Saye. for defendant in error.
   Opinion by

JARMAN. 0.

The parties will be referred to as they appeared in the trial court. The plaintiff, Hattie Nicholson, in making a business call at one of tbe residences in tbe city of Duncan, a municipal corporation, defendant, stepped in a bole in front of sucb residence caused by (be defendant removing' an electric light pole, causing her to fall on her right band and arm, breaking tbe same. Tbe plaintiff instituted this action to recover $3,000 damages for pain and suffering, and $3,000 for permanent injuries to her band and arm. Tbe defendant, by way of answer to plaintiff’s petition, filed a general denial. A general verdict was returned in favor of tbe plaintiff for $1,866. After unsuccessful motion for new trial, the defendant lias appealed.

At tbe conclusion of all of ibe evidence, the defendant sought to amend its answer to allege contributory negligence on tbe part of tbe plaintiff, contending that the evidence of tbe plaintiff rended to' show tbe accident was caused by her failure to exorcise ordinary care to observe and avoid tbe bole in which she stepped. Tbe defendant insists that the refusal of tbe trial court to permit such amendment constituí eel prejudicial error. There is nothing in tbe evidence, introduced on behalf of the plaintiff, to show that tbe plaintiff, by tbe exer-' cise of ordinary care, could bave detected or observed the hole in time ro have prevented tbe accident; however, by instruction No. 10. given by tbe trial court, the de.endaut was given tbe full benefit of tbe plea of contributory negligence. Tbe jury was instructed that rhe burden was on tbe plaintiff to show by a fair preponderance of tbe evidence, that tbe injury sustained was caused by tbe neglig'ence of tbe defendant in moving ar;, electric light pole and leaving an open bole in tbe ground, and that tbe plaintiff used ordinary care in going from the street to tbe premises in question, and, farther instructed vbat if the jru-y should find "that tbe plaintiff, by tbe use of ordinary care.- could bave seen tbe bole in the ground, and avoided said bole, and thereby avoided the injury complained of, then you are charged that tbe plaintiff cannot recover.” In view of tbe foregoing instruction to the jury, tbe defendant’s rights were not prejudiced in any manner by tbe court’s refusal to permit the amendment referred to.

The next proposition, urged by the defendant, is that tbe permanent injury of tbe plaintiff was caused by her own primary negligence in failing and refusing to procure medical and surgical treatment, and that defendant is not liable in damages therefor.

Tbe uncontradict-ed evidence shows thac plaintiff never bad her arm and band treated by a physician or surgeon ; that if sucb surgical treatment had been rendered within a short time after tbe accident; ibe fractured bones could bave been set ¡and placed in. splints, and within about eight weeks tbe plaintiff would have practically recovered the c mplete use of her arm and band. At firsr, tile plaintiff thought her band and arm were sprained, and not until about 20 or 25 days aft-r tbe ilnjury, when she (ionsulied a physician, did she learn there was a fracture. At tha‘- time, tbe bones bad begun to knit, and tbe physician advised that it would be necessary for tbe bones to be rebroken and set, and that ibis could not be done without administering an anesthetic. Tbe plaintiff insisted t-hat she could not take an anesthetic.. and no treatment was ever given the injured _ arm and hand of the plaintiff. The evidence shows that tbe arm could bave been rebroken and set, and that- tbe plaintiff could have regained the use thereof, and the suffering would have been alleviated. It is true, that one who is personally injured and fails ro use ordinary care, after having knowledge of the injury, in procuring timely medical or surgical treatment. and. by reason of such failure, his condition is rendered worse than it would have been if be bad used such ordinary care, cannot recover the increased damages resulting From such failure, but is entitled to recover only such damages as he would have sustained had he not been guilty oí negligence in failing to obtain medical or surgical treatment. Robertson v. Texas & P. R. Co. (Tex. Civ. App.) 79 S. W. 96; City of Waxahachie v. Connor (Tex. Civ. App.) 35 S. W. 692.

Note. — See under (1) 4 C. J. p. 946 §2920. (2) 29 Oye. p. 532; 8 R. C. L. p. 448; 2 R. C. L. Supp. p. 612; 4 R. C. L. Supp. p. 555: ■5 R. O. L. Supp. p. 469. (3) 4 C. J. p. 1029 8 3913.

It is impossible to tell from the record whether the jury took into consideration the permanent injury of the plaintiff. The verdict is a general one, and is for much Hess than the plaintiff would have been entitled to recover for permanent injury, resulting in the loss of her earning capacity. The amount of the verdict would indicate that the jury merely took into1 consideration the pain and suffering experienced by the plaintiff up to the time she was advised by her physician that the bones would have to be rebroken and set, and the pain and suffering incident to the rebreaking of the bones and the knitting of the same, and the expense thereof, together with the loss of time. The trial court, by instruction. No.' 11 took the same view of the law as is now contended for by the defendant, and both plaintiff and defendant seemed to concur in such view, as neither party excepted to said instruction. Instruction No. 11, alter stating that if the jury should find for the plaintiff on the issue of negligence, announced the following rule for determining the amount of damages:

“You are charged That she (plaintiff) cannot recover for any loss of earning, or for any pain or suffering caused by her own neglect in failing to give the injured arm proper medical and surgical attention, and plaintiff’s recovery, in any event you say she should recover, will be limited to the loss of earning and^gain and suffering that would have resulted'had plaintiff used due care in giving herself proper medical and sugieal ,attention, together with the expense of such medical and surgical attention if same had been given.”

We must indulge the presumption that the jury followed this instruction aild ren-, dered its verdict in keeping therewith; and, under the evidence produced, the verdict was justified in the light of such instruction.

The defendant complains of certain instructions given and refused by the court. We have carefully examined said instructions, those given by the . court and those requested by the defendant and refused by the court, and find no prejudicial error was commitced by the court in respect thereto. The error complained of in respect co the instructions given by the court has been considered in connection with the other propositions hereinabove discussed, and. as to the instructions requested by the defendant, the same were fully covered by instructions given.

Rinding no prejudicial error in the record, the judgment of the trial court is affirmed.

By the Court: It is so ordered.  