Brooks v. Rochester Railway Co.

The plaintiff recovered a verdict of $5,200 as her damages for a personal injury resulting from the defendant’s negligence in obstructing a street upon which the plaintiff was passing in a carriage. The questions presented by the appeal do not necessarily pertain and are not jjeculiar to the law of negligence. They may be involved in any other class of actions, since they relate to the measure of damages

The plaintiff brought an action for that injury on the 30th of July, 1892, and before the last accident had occurred. The case was defended and tried on the 23rd of February, 1893, and resulted in a verdict in her favor of $7,500, which was subsequently, on appeal, reduced to $3,750. She brought this action for the second injury on October 26th, 1892, while the first action was pending and untried, and the verdict was rendered at a term of the court held January 25th, 1894, and after the first judgment had been rendered. On both trials the plaintiff called the same medical experts to prove the character and extent of the injuries, and in both cases the plaintiff claimed to have been permanently injured as the result of each accident

In the first case she claimed to recover for a permanent injury to her back and knee as the result of the first accident. In the second case she claimed to recover for a permanent injury to her back and wrist as the result of the second accident. It appears that the plaintiff was a teacher of elocution and also an artist in painting on china and that she derived considerable profit from the practice of these vocations and in both actions she claimed to have been totally disabled from earning her living by these professions in consequence of the accident involved in the particular action. It will be seen, therefore, that it is important at the outset to get a clear view of the effect of the first judgment and the questions determined by it. Her complaint was broad enough in that action to permit a recovery for a permanent injury to the back and knee and'the proof tended to sustain that claim. As the result of these injuries the jury could have found that she

Hence it is obvious that the plaintiff can recover in this action only for such additional injuries as may be properly and legally attributed to the second accident. For any new injury the result of that accident she may be awarded damages, and, therefore, as the injury to the wrist was new, she is entitled to recover for that. In so far as the old injuries were increased or aggravated by the second accident she may also recover, but since it is admitted that there was no new or additional injury to the knee, no damages can be awarded for that in this action. And since the first judgment in her favor was for damages resulting from her disability to teach elocution or paint on china, her present disability to do these things cannot legally be attributed to the last accident. This disability was involved in the first trial and passed upon by the jury in her favor, and hence it could not be an element for the consideration of the jury in the second action on the question of damages. It may be true that by the second accident she became disabled in some other way and was in consequence incapacitated from doing something else that she could have done before and subsequent to the first accident, and so far she had a right of recovery in the second action. A former judgment is as conclusive upon the plaintiff as upon the defendant as to all matters within its scope, and hence it was not open to the plaintiff in this case to give proof of any claims which had been set at rest by the first judgment. Her disability to teach elocution and painting as a result of the injury to the back or to the knee or both was involved and passed upon in the first action, and for that disability she has been compensated by the first judgment, and can have no further recovery. It was important, therefore", upon the trial

The plaintiff was attended after both accidents by the same physician, a lady who was sworn as a witness for the plaintiff on both trials. Her testimony at this trial tended to show that at the time of the second accident the plaintiff was gradually recovering from the effects of the first, but that her injuries in the second accident were likely to be permanent. Her testimony'at the first trial also tended to prove that the plaintiff’s injuries in the first accident to the back and knee were likely to be permanent. On her cross-examination in the present case the defendant’s counsel asked her if she had not expressed the opinion when a witness at the first trial that the in jury to plaintiff’s knee was a permanent one from which she would never recover. The plaintiff’s counsel objected to the question on .the ground that it was immaterial and incompetent. The court sustained the objection and the defendant’s counsel excepted. At a subsequent stage of the cross-examination of the same witness she was asked if she was still of the opinion that she had expressed on the first trial that the injury to the knee in the first accident was a permanent one. The question was objected to by the plaintiff’s counsel on the same ground, and the objection was sustained and an exception taken.

We think that the defendant was entitled to an answer to both questions. It was manifestly to the plaintiff’s interest on the last trial to magnify the extent of her injuries in the second accident and to belittle those resulting from the first accident, in order to satisfy the jury that her then condition was to be ascribed wholly or principally to the last accident, then under investigation. It is evident from the previous testimony of this witness, as it appears in the record, that she fully understood the situation in this respect, and there were

The nature and extent of the plaintiff’s claim on the first

It will be seen that these remarks had no reference to any ruling made upon the trial of the present action, or to anything that took place in the presence of the jury. It was his own recollection of a past transaction involving a disputed fact that transpired in his presence, and of which he was a witness. The defendant’s counsel, at the close of the charge, excepted to the remarks of the judge with respect to what

It will not detract in any degree from the high character of the learned judge to say that he did not at the moment fully appreciate the importance of his remarks, or the probable influence which would be given to them by the jury. He was about to submit to them a disputed question of fact upon the evidence, and he virtually threw into the scale against the defendant all the weight of his impartial position and unbiased recollection upon that very question. There was no longer any chance for the defendant to succeed, at least upon that issue. The error was not cured by the request that the jury dismiss from their minds such a pointed" statement. There can be no doubt that the court has the power to cure erroneous rulings, made in the presence of the jury, in the admission of incompetent testimony, by reversing the ruling, striking out the testimony and directing them to disregard it. But this error was not in any proper sense a ruling or decision at the trial. It was the statement by the judge of his recollection of a material fact, with respect to which the jury had no knowledge except as it was to be derived from the testimony before them. They could scarcely be expected to dismiss from their minds what they had just heard from such a high source with respect to a fact that took place in his presence.

Bor these reasons we think that the judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.

Judgment reversed, etc.