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Gleason v. Hudson Valley Railway Co.

143 A.D. 884 Court Third Department, Decision date 1911-03-08 English

Delivered by Houghton, J.:

Contents

Majority

p. 884
Nellie Gleason, Respondent, v. Hudson Valley Railway Company, Appellant.
Third Department,
March 8, 1911.

Headnote

Evidence — personal injuries — speculation as to results of accident — railroad — negligence — erroneous charge — hours of labor.
In an action to recover for personal injuries it is error to allow the plaintiff’s physician to state that her symptoms following the injury “suggested” dia betes and “indicated” that the disease was caused thereby.
This, because, assuming that under the pleading the plaintiff might prove that she suffered from diabetes caused by the injury, evidence of the possibility of that result is inadmissible.
Section 6 of the Labor Law, providing that ten consecutive hours’ labor shall constitute a day's labor in the operation of a street surface railroad, does not apply to companies whose route does not lie principally within the corporate limits of cities of the first or second class. Hence, in an action against a railroad company whose route does not lie principally within such cities, but which has merely a terminus in such city, it is error to charge that the jury may find the defendant negligent if the motorman and conductor had worked over ten hours on the day of the accident, there being no proof that they had been on duty sixteen hours so as to violate section 1371 of the Penal Law.
Appeal by the defendant, the Hudson Valley Railway Company, from a judgment of the' County Court of Washington county iij
p. 885
favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of March, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.
James McPhillips, for the appellant.
John Van Valhenburgh, for the respondent.

The plaintiff was a passenger upon one of the defendant’s cars, and claims that she was injured because the car was started before she had an opportunity to alight after it had stopped to permit her so to do.

The defendant contended that the car was not stopped at all and that the plaintiff attempted to alight while it was in motion.

We think the very great weight of evidence is with the defendant upon this proposition, and we would reverse the judgment and grant a new trial on the ground that the verdict was against the weight of evidence, without any opinion, except for certain exceptions which the appellant urges upon our attention. In view of the new trial which must be had it is proper that we give them consideration.

Against the objection of the defendant the plaintiff was permitted to show by her attending physicians that her symptoms following the injury “ suggested ” diabetes and “ indicated ” that the disease was caused by her injuries. Consequences which are merely possible and speculative are riot proper to be considered in estimating damages. (Strohm v. N. V., L. S. & W R. R. Co., 96 N. Y. 305 ; Osterhout v. D., L. & W. R. R. Co., 138 App. Div. 625 ; Huba v. Schenectady Railway Co., 85 id. 199.) Assuming that under the pleadings it was competent for the plaintiff to prove that she suffered from diabetes which was caused by the injuries which she received, the possibility of her so suffering was not proper evidence. The physicians were not directly asked their opinions on the subject and their answers to the various questions indicate the doubt that existed in their own minds. The rule that the opinion of experts with respect to the outbreak of new diseases should be confined to probable consequences based upon reasonable

p. 886
certainty is so broad that doubtful and speculative expressions of a physician should not be permitted. Whatever a physician may say with respect to the possibility of one suffering from a certain disease in the future is likely to be construed by the jury as his deliberate opinion on the subject when he himself does not feel sure enough to express it.

The learned trial court charged the jury that it was negligence on the part of the defendant which might be considered by them, if the motorman and conductor worked over ten hours on the day that the accident happened. As matter of fact they had been on duty about thirteen hours. While it was proper enough for the plaintiff, if she could on cross-examination, to show that the conductor was tired out or sick and incapacitated, it was not negligence or any violation of law on the part of the defendant to permit him to work more than ten hours. Section 6 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36) provides that ten consecutive hours’ labor shall constitute a day’s labor in the operation of all street surface railroads whose main line of travel or whose roads lie principally within the corporate limits of cities of the first and second class. The defendant’s line of travel and route does not lie principally within the corporate limits of cities of the first or second class, although its southern terminus is Troy. Therefore, this section of the Labor Law is not applicable to it and the permitting of its conductor or motorman to work more than ten hours was not a violation of law upon which negligence could be predicated. The defendant’s conductor had not been on duty sixteen hours, and hence there was no violation of section 1271 of the Penal Law. It was not proper, therefore, to permit the jury to base any negligence of the defendant upon the fact that its motorman and conductor had been on duty more than ten hours the day of the accident. '

The judgment and order must be reversed and new trial granted, with costs to the appellant to abide the event.

. All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

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