Marx v. Ontario Beach Hotel & Amusement Co.

The familiar routine of our so-called negligence litigation is occasionally varied by a case, like the one at bar, which is so near the border line between non-actionable accident and the culpable act or omissi.on from which liability flows, that it •cannot easily be classified. In the review of all such cases it is important that errors in trials, which might be regarded as harmless when there is practically no question as to a defendant’s liability, should be scrutinized with strict regard for legal rules.

The circumstances at bar are quite unusual. On the 18th day of August, 1911, the defendant maintained a place for public amusement and entertainment known as Ontario Beach Park. At the entrances there were offices where tickets were sold, which were taken up by attendants stationed at turnstiles which registered the admissions. In the evening of the day named the plaintiff and two companions visited this park. The plaintiff purchased three tickets which she gave to one of her companions who handed them to the attendant and proceeded through the stile. Plaintiff’s other companion followed, and then came the plaintiff. At the instant when plaintiff reached

On the trial the defendant produced the turnstile at which the plaintiff claims to have sustained her injuries, and two others of the same type. Each of these machines consisted of a cast-iron base 17% inches in diameter which is fastened to the floor by means of bolts. Superimposed upon this base there is a column or standard 37 inches in height on the top of which there are four horizontal arms set at right angles to each other at the center and extending outward 21 inches with the outer ends 29 inches apart. Inside of the center there is a mechanism of the “dog” and “ratchet” design so connected with a foot lever that the operator can lock the arms and prevent them from turning. It was shown at the trial, however, that these arms had a backward movement at the ends of about four inches which would of course be lessened with each inch of measurement toward the center.

Since it is practically conceded that there was no mechanical defect in the stile at which the plaintiff says she was injured, it is manifest that the learned trial justice submitted the case to the jury upon the only theory warranted by the evidence, and that was that the operator did not merely stop the movement of the stile, but gave the arms a sudden backward movement to the extent of

Counsel for the defendant invokes the rule that there can be no legal liability for an accident which is so rare, unexpected and unsual that it is not to be anticipated in the exercise of reasonable care. (Hubbell v. City of Yonkers, 104 N. Y. 434 ; Beltz v. City of Yonkers, 148 id. 67; Cleveland v. N. J. S. Co., 125 id. 299.) This rule is well established, but we think it has no application to the case at bar. Where negligence of a person is predicated upon some omission of duty it is always necessary to inquire whether the dereliction is of such a character as will be likely to invite or produce injury to others. It is different, however, when the alleged negligence consists in some affirmative and wrongful act, for in such a case the wrongdoer is not excused by his failure to foresee the consequences. In the case at bar the act of the defendant’s employee was of such a nature that the jury were authorized to find it both negligent and willful, and it is imputable to the defendant under the law of respondeat superior. (Feeney v. Long Island R. R. Co., 116 N. Y. 375 ; Butler v. Manhattan Ry. Co., 143 N. Y. 630 .)

There is another feature of the trial, however, in which the plaintiff is not so fortunate. It is the plaintiff’s claim that, as the result of the injury which she received at the turnstile, she developed an encysted ovary and an inflamed ovarian tube, which had to be removed by a surgical operation. There was medical testimony to support the view that the physical condition which necessitated the operation might have been caused by such an accident as has been described; but there was other testimony for the defendant which tended to show that such an injury as the plaintiff received could not have caused that condition. In short, it is plain that the evidence on that subject was not merely an incident of the

The plaintiff called as witnesses three medical doctors. The hypothetical question which had been framed for the occasion was based in part upon facts “as shown by the evidence here ” or “ as shown by the evidence in the case.” This was clearly erroneous. (Reynolds v. Robinson, 64 N.Y. 589 ; Guiterman v. Liverpool, N. Y. & P. S. S. Co., 83 id. 358; Link v. Sheldon, 136 id. 1.) An expert witness may'not draw inferences or state conclusions from the testimony of other witnesses. His opinion must be based upon facts which are stated in the form of a hypothetical question.

There was still another error in the ruling upon this kind of testimony. After these defective hypothetical questions had been allowed over the objections and exceptions of defendant’s counsel, and the experts had expressed the opinion that the accident suffered by the plaintiff was a sufficient producing cause of the injuries of which the plaintiff complained, the plaintiff’s counsel was permitted to ask, “You think the accident here sustained by Mrs. Marx did cause the injuries necessitating the operation?” and the witness was permitted to answer, “I do.” In the case of another witness the question was even more blunt, for there it was: “Did this blow which Mrs. Marx received on the abdomen at the time of this accident, cause the injuries complained of?” and the answer was: “Taking into consideration all the facts, I think it did.” The mischief in these questions lies in the fact that they frankly ignore any

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

Willard Bartlett, Oh. J., Ohase, Collin, Cuddeback and Hogan JJ., concur; Cardozo, J., dissents.

Judgment reversed, etc.