Duffy v. Kalbach

Headnote

Duffy v. Kalbach, 186 App. Div. 883 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered

November 14, 1918, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The intestate was chief of the fire department of the city of New York. While responding to an 'alarm of fire the wagon -in which he was riding was struck by one of defendant’s trolley cars and the intestate was thrown out and injured. Intestate apparently recovered, and died sixteen months later. Plaintiff contended and offered testimony tending to prove that death was due to laceration of the brain which had not healed. Defendant contended that there was no evidence to sustain the finding of the jury that the decedent was free from contributory' negligence, or its finding that the defendant’s motorman was guilty of negligence; that there was no real evidence to establish that the decedent’s death, on May 5,1913, was due to any injuries sustained by him in the accident on January 5/1912. On the contrary, the evidence established that the plaintiff’s death was due to heart failure, and not to cerebral pressure due to the accident, and that the trial court erred in its instruction to the jury as to the nature of the connection which the plaintiff was required to establish between the accident and the decedent’s death.