Napier v. Brooklyn Heights Railroad — 68 A.D. 200

Majority

p. 200

Frank Napier, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.

Headnote

Negligence — testimony of a physician as to a plaintiff’s condition four months, after the injury complained, of— a verdict for §3,500 held not to be excessive

In an action to recover damages for personal injuries sustained by the.plaintiff' June 30, 1899, a physician, who first saw the plaintiff on the 21st or 22d day of October,. 1899, may properly be allowed, over the objection of the defendant that it was not connected with the injury, to state what he found upon his. examination of the plaintiff, as, until he has answered the question, it cannot. ' be determined whether the conditions -which he found were, or were not, caused by the accident.

Where it appears that in consequence of the accident the plaintiff’s left leg has become an inch shorter than the right, and that the. cartilage of the hip joint is wasting away, and that the plaintiff has become the victim of a gradually progressive disease, permanent in character, which will ultimately, destroy the cartilage that covers the neck of the thigh bone, and tend to cripple.him more and more, a verdict of §3,500 will not be set aside as excessive.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county.of Kings on the 11th day of April, 1901, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 18th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

I. li. Oeland and George D. Yeomans, for the appellant.

Martin P. Lynch, for the respondent.

This is a negligence suit, in which only two points are presented upon the brief for the appellant: (1) That the injuries described by Dr. Hafis, a witness for the plaintiff, found four months after the accident, were not shown to have resulted from the accident; and (2) that the verdict of $3,500 is excessive for the injuries proven.

After Dr.-Rafis testified that he first saw the plaintiff on the Sister 22d of October, 1899, the accident having occurred on the thiitietli of June in that year, the witness was asked: “ What did you find from your examination ? ” This question was objected to “ as-after Dr. Oruikshank had attended him, as incompetent, immaterial

p. 201

and not connected with the injury.” The objection was overruled and an exception taken. This ruling was entirely correct. The-question merely called for the results of the doctor’s examination» It could not be made to appear whether the conditions which he found were caused by the accident, or could have been caused by the accident or not, until they were stated. Among the results of the examination, as described by the witness, was the existence of a. swelling of the left hip. This was clearly connected with the-injury, as the plaintiff himself had testified that he was hurt on the-hip and that most of his hurt was in that part of his body. It is-true that Dr. Nafis testified to some other conditions that were not directly shown to have any relation to the accident; but if the-learned counsel who represented the appellant upon the trial had deemed this evidence objectionable, he should have moved to strike it out. His failure to do this leaves' the defendant without, any tenable exception so far as this branch of the case is concerned» There was a motion at the end of the case to strike out all the testimony in regard to the injury to the plaintiff’s hip, on the ground that it had not been connected with the accident at all; but, as has. already been pointed out, it was precisely this injury that was most clearly connected with the collision by which the plaintiff was hurt. The motion was restricted in its terms and was not broad enough to-include the other testimony of Dr. Nafis to which we have referred.

If the jury believed the medical evidence for the plaintiff (entirely-excluding from consideration the testimony of Dr.' Nafis, which, might have been stricken out if an appropriate motion had been made), we cannot say that they erred in their award of damages.. That evidence not only showed that the plaintiff’s left leg had become an inch shorter than the right, in consequence of the accident, but that the cartilage of the hip joint was wasting away, and that the plaintiff had become a victim of a gradually progressive-disease, permanent-in character, which would ultimately destroy the cartilage that covers the neck of the thigh bone and tend to cripple him more and more.

We. think the judgment must be affirmed.

All concurred.

Judgment and order unanimously affirmed, with costs.