Perry v. Metropolitan Street Railway Co.

was “ embarrassed ; ” that if there were nerves going up to the seat of fracture it (they ?) were liable to be involved in the callous, and that pain might be constant. During the cross-examination of this physician the learned court asked the counsel for the defendant: “ Are you going to dispute the fact that this man’s ribs were broken ? ” Defendant’s counsel replied: “I will make the contention that the injury was not as serious as claimed at all.” Thereafter the learned court permitted the physical demonstration in question. I do not find that any exception was taken, but if exception appeared, I think that the ruling of the learned - court (Herrick, J.) was not erroneous, for such physical exhibition was necessary to a demonstration of the deformity testified to by the physician, and tended to make the description of the injury more intelligible to the jury. (Mulhado v. Brooklyn City R. R. Co., 30 N. Y. 370 .) The principle in that case is not questioned in Rost v. Brooklyn Heights R. R. Co. ( 10 App. Div. 478 ), cited by the learned counsel for the appellant. In the latter case the court permitted an exhibition of the severed foot, which had been preserved, although the defendant admitted that the amputation had been made and disavowed any contention that it had not been properly performed. The counsel for the plaintiff in the Rost case stated that the object was “ to show the size of the child at the time.” "W e said that the size of the child at the time of the accident was of comparatively little importance ; that as the child was present at the trial, the jury could judge of this fact by observation quite as well as by such an exhibition, and that although it might be assumed that technically the rule permitted such an exhibition, yet it had little force where no legitimate object was to be ■subserved, while the tendency of the exhibition was to arouse the prejudice and inflame the passions of the jury. There is a manifest ■distinction between an exhibition of a deformed body by way of a more intelligent and satisfactory understanding of the injury (and its effects where the extent and character of the injury are challenged) and the exhibition of a dead and severed part of the body, where the injury is unchallenged, and when the purpose of the show is to prove a matter of minor importance fully capable of proof by evidence, which has no tendency to influence or to prejudice the jury.

It is also contended • that it was error to permit the plaintiff to prove that the speed of the car at other points on the road was different from that near the point where the accident occurred. The speed just before the collision was a material question. There were two motormen on the car, one being a new man under instruction by a more experienced motorman. The testimony for the plaintiff was that the “ green hand ” Was in control at the time of the accident. This was denied by the defendant. The new motorman was called by the defendant. Upon cross-examination he testified “ My estimate now is that he (i. e., the old motorman) was going then — well, about six miles. This is not the way Lewis (the old motorman) taught me to run a car through the streets of New York, all the way from Harlem down to Hudson street, to go at the rate of eight miles an hour between intersecting streets and slow down to only six miles an hour at crossing an intersecting street. Q. Was there any time from Harlem down that Lewis sent this car across an intersecting street at a less rate of speed than' six miles an hour ? Objected to, what he may have done at any other point the question is what he was doing at the time of this collision. The Court: You may ask it. Defendant excepts.” Upon the-, direct examination of Lewis he had testified in reply to the defendant’s counsel: “ I had crossed Perry street. My- car was not going at a high rate of speed. We never go at a high rate of speed at. any crossing; I was going about three-quarter rate of speed the fastest.” The new motorman had testified that before the car reached Perry street (the vicinity of the accident), “I felt him. thro wing1 his-power off. The speed reduced to about -probably six: miles an hour, * * * to my estimation, at the time, being a. new man, * * * probably five or six miles.” I think that the-question was competent on cross-examination, to determine both, what Lewis meant by a high rate, of speed and to test the recollection of the adverse witness as to the speed at this particular point. The verdict is for $4,500. The plaintiff was forty-five years old.. Four of his ribs were fractured and pushed in so, as to cause permanent deformity which affected his lungs and consequently his. respiration. There is continuous pain. The plaintiff also received a scalp wound which left a scar. He suffered from pleurisy and suffers pain whenever he attempts to do anything. He testifies that

he had not been able to work at all since the accident, although prior thereto he had earned ten dollars a week. No medical testimony was offered by the defendant, and its learned counsel stated at the close of the summing up that it did “ not go to the jury on the question of his injuries, we go to the jury on the fact that we are not responsible for his accident.” I think that the verdict should stand.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.