Hyperlawhypertext legal database Rosevelt v. Manhattan Railway Co. 13 N.Y.S. 598

← Cases

Rosevelt v. Manhattan Railway Co.

13 N.Y.S. 598 Court N.Y. Super. Ct. Decision date 1891-03-09 English

Delivered by Dugro, J.

Contents

Majority

p. 598
Rosevelt v. Manhattan Ry. Co.
(Superior Court of New York City, General Term.
March 9, 1891.)

Headnote

1. Damages por Personal Injuries—Evidence.
In an action for damages for personal injuries sustained in consequence of defendant’s negligence, consisting in part of an injury to plaintiff’s arm, testimony of a physician that, when he last examined plaintiff’s arm, she had persistent pain on motion, is not objectionable, as involving the assumption that there was pain at the time of trial.
2. Same.
The question asked a physician: “You examined her [plaintiff] a few days ago, and she told you while, you were examining her that she was suffering from pain in that arm? ”—is not objectionable, upon the ground that the witness could not testify to plaintiff’s having pain, or that it involved an assumption that there was pain “ at the present time. ” And the answer thereto, “ The motion caused pain, ” is unobjectionable, except as not responsive.
3. Same—Pleading.
It is not necessary to allege the permanency of the injury in the complaint in order to permit evidence of such permanency. i. Same—Evidence.
Evidence by defendant as to the extent of the injuries to the car in which plaintiff was riding is not relevant, and is properly rejected.
Appeal from jury term.
Mary J. Rosevelt sued the Manhattan Railway Company for damages for personal injuries. Judgment for plaintiff, and defendant appeals.
' Argued before Sedgwick, C. J., and Dugro, J.
Davies & Rapallo, for appellant. William G. Bussey, for respondent.

This is an appeal from a judgment and an order denying a motion for a new trial. The action is for damages for personal injuries sustained in consequence of the negligence of the defendant.- Thein jury alleged1 was, in part, of plaintiff’s arm. A physician who had1 attended the plaintiff testified in her behalf that when he last examined her arm she had persistent pain on motion. Defendant’s request to strike out this testimony, upon the ground that it involved the assumption that there was pain “now,” was properly denied. A fair interpretation of the answer shows that it did not involve the assumption claimed. 1 A question put on behalf of the plaintiff was, “You examined her [plaintiff] a few days ago, and she told you while you were examining her that she was suffering from pain in that arm?” This question was objected to upon the ground that the witness could not testify as to the plaintiff’s h'aving pain, and upon the ground that it involved an assumption that there was pain “at the present time.” The question was not objectionable upon the grounds stated. The answer was unobjectionable, except as not responsive.

A question as to the permanency of the injury was objected to, as not having been alleged in the complaint. This objection was properly overruled, as there was no necessity for such an allegation in the complaint. Curtis v. Railroad Co., 20 Barb. 282 , affirmed, 18 N. Y. 534 .

The exclusion of defendant’s proffered evidence, as to the extent of the injury to the car in which the plaintiff was a passenger, was proper; for the extent of the injury to the car, of itself, had no relevancy to the plaintiff’s injuries, or the force of the collision described by the plaintiff. I have examined the other exceptions in the case, and find none of value. The judgment and order should be affirmed.

Cases cited