Majority
p. 1047(120 App. Div. 372) PERELLI v. NEW YORK CITY RY. CO. (Supreme Court, Appellate Division, First Department. June 14, 1907.) Argued before PATTERSON, P. J., and McLAUGHLIN, SCOTT, LAUGHEIN, and HOUGHTON, JJ.
Headnote
Trial&emdash;Instbuctions&emdash;Damages.In an action for personal injuries, where the only witness interrogated as to the matter of permanent injuries was plaintiff’s physician, who declined to express an opinion because it would all depend upon the treatment received, it was error to submit that question to the jury.
[Ed. Note.&emdash;For cases in point, see Cent. Dig. vol. 46, Trial, §§ 596-612.]
Appeal from Trial Term, New York County.
Action by Joseph Perelli against the New York City Railway Company. From a judgment for plaintiff and an order refusing a new trial, defendant appeals.
Reversed and remanded.
Bayard H. Ames, for appellant.
Thomas F. Gilroy, Jr., for respondent.
It was clear error to submit to the jury any question as to the permanency of the plaintiff’s injuries, for there was no evidence justifying such submission. The plaintiff’s physician, who alone was interrogated on the point, declined to express an opinion, urging that an answer “would be speculative, because it all depends upon the kind of treatment he received.” There was no other evidence on the subject.
The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event.