Doyle v. Manhattan Railway Co. — 15 Daly (N.Y.) 475

Majority

p. 475

Owen Doyle, Respondent, against The Manhattan Railway Company, Appellant.

(Decided February 3d, 1890.)

Headnote

In an action for personal injuries caused by defendant’s negligence, it appeared that plaintiff’s leg was torn just under the knee, that the wound mortified, and he was confined to bed for eight weeks and in the hospital three months. Held, that a verdict for plaintiff for $1,500 would not be reversed for the erroneous admission of evidence of a pulmonary trouble a year later, not connected with the injury, the court having instructed the jury to disregard that fact as an element of damages; the damages awarded not being excessive for the injury.

Appeal from a judgment of this court entered upon a verdict for plaintiff and from an order denying a motion for a new trial on the minutes.

The facts are stated in the opinion.

Austen G. Fox, for appellant.

Henry T. Terry, for respondent.

This is an action brought to recover damages for injuries sustained by the plaintiff through the alleged negligence of the defendant. The jury, upon conflicting evidence as to the cause of the injury, found that it was occasioned through the negligence of defendant. The injury consisted in a severe wound just below the- knee, which stripped up the skin from the upper third of the lower

p. 476

leg, and bared the bone for a considerable distance. The wound mortified, and a space as large as would be covered by a man’s two hands was involved. The plaintiff was taken to a hospital, where he remained from January 22d to April 23d, being confined to his bed for eight weeks of that time.

But one question is raised by the appeal in this case. The plaintiff, after stating that he grew stronger for a while after the accident, testified that he was attacked again with a second sickness on or about January, 1889, about a year after the injury to the leg. He was allowed to testify, under defendant’s objection, that this second sickness consisted of a hemorrhage of the lungs, without having previously shown in any way the cause of this hemorrhage. Dr. Daviu, who first began to attend the plaintiff at the time of the hemorrhage and about a year after the accident, was also allowed to testify to the occurrence of these hemorrhages. A hypothetical question was then put to this witness, and he was asked, “ Should you attribute his condition (that is, his weakness and hemorrhages) to. the accident?” This was objected to by defendant, and the physician in answering the question assumed, in addition to the elements in the hypothetical question, that if the plaintiff had any predisposition to pulmonary troubles, he would attribute the confinement in the hospital and the surgical injury and the long continued suffering as having something to do with the development of the trouble ; but added, “ I cannot say that the injury to his leg directly caused the trouble in his lungs.”

Without laying a proper foundation for such questions, they were inadmissible in evidence, and the hypothetical question put to the physician did not contain sufficient elements to enable him to testify with any certainty as to whether or not the hemorrhages were the result of the injuries sustained by him.

We think that this testimony was erroneously admitted, and that the judgment should be reversed, but for the fact that all of it was directed to a particular element of'damage, and the court in its charge to the jury expressly directed them that the evidence of the cough and of the hemorrhages

p. 477

was not sufficiently connected with the accident to entitle them to take that element of damage into consideration, and we cannot perceive from the verdict that the jury disregarded the direction of the court, for the amount of the verdict rendered, $1,500, we do not think excessive for the injuries actually sustained and the direct consequences thereof. The injury and the consequent suffering, we think was as great, if not' greater, than if the leg had been actually broken, and a verdict of like amount has been frequently rendered by juries for the latter injury. The court will not reverse a judgment, although erroneous testimony may have been admitted, unless convinced that some injury to the defendant has resulted therefrom.

We therefore think the judgment should be affirmed, with costs.

Larremore, Ch. J., concurred.

Judgment affirmed, with costs.