Carples v. New York & H. Railroad — 44 N.Y.S. 670

Majority

p. 670

CARPLES v. NEW YORK & H. R. CO.

(Supreme Court, Appellate Division, First Department.

April 9, 1897.)

Headnote

1. Damages—Recovery to Time of Trial.

Plaintiff in an action for personal injuries "is entitled to damages to the time of trial.

2. Same—Loss of Barrings.

Plaintiff is entitled to show loss of earnings because of his absence from business, where the complaint alleges that he was compelled to remain-away for six weeks because of his injuries.

8. Appeal—Review—Right of Party not Appealing.

On appeal by plaintiff because of the inadequacy of the damages, the court cannot consider whether the action should have been dismissed at the trial, on the ground that plaintiff was not entitled to any recovery,, where defendant did not appeal from the judgment.

Appeal from trial term, Yew York county.

Action by James M. Carples against the Yew York & Harlem Railroad Company for personal injuries. A verdict was rendered in. favor of plaintiff for $250, on which judgment was entered. Plaintiff appeals from the judgment, on the ground that the damages awarded were insufficient. Reversed.

Argued before VAY BRUYT, P. J., and BARRETT, RUMSEY,. O’BRIEY, and IYGRAHAM, JJ.

J. T. Richards, for appellant.

Payson Merrill, for respondent.

This action was brought to recover damages-for personal injuries sustained by the plaintiff through the negligence of the defendant in being thrown from one of the defendant’s cars while attempting to enter as a passenger thereon. Upon the trial of the ease the plaintiff attempted to prove his damages up to the time-of the trial. This evidence was excluded, and an exception taken.

p. 671

We think this was error. While the plaintiff, perhaps, had not made such allegations in his complaint as would justify him in claiming damages for permanent injuries, he certainly had the right to prove such injuries as he had sustained up to the time of the trial. It is a principle too familiar to need the citation of authority that in all actions for damages those which have been sustained up to the time of the trial may be recovered, except those which may be special in their nature, in which case an allegation of special damage in the complaint is necessary. In the case at bar the evidence offered was of the ordinary character which naturally pertains to injuries of the description sustained by the plaintiff, and he was entitled to receive compensation therefor if he made out his cause of action.

The plaintiff also attempted to prove loss of earnings during a certain period as a result of the injury. It seems to us that the allegations contained in the complaint were ample to support proof of this description. The plaintiff alleged that he was compelled to remain away from his business for about six weeks, and was deprived of the use of his foot, and otherwise injured. He was therefore entitled to show what his loss of earnings was because of his absence from business, such absence being one of the natural and necessary results of the injury.

There are other exceptions to the exclusion of evidence, which also seem to be well taken, but which it is not necessary to consider particularly here. The answer which the respondent makes to the plaintiff’s appeal is that, upon the evidence, the complaint should have been dismissed, and the plaintiff was not entitled to any recovery whatever. It seems to us that that question cannot be considered here, as the defendant’s exceptions to the rulings of the court are not properly before us, and for the purposes of this appeal it must be assumed that there was a right of recovery in some amount. The questions which are presented upon this appeal might have been raised by a bill of exceptions which contained none of the evidence, and consequently it would be impossible to determine the question which is sought to be brought to our attention by the counsel for the respondent. As above stated, the respondent’s exceptions not being properly before the court, we cannot consider the proposition that the court erred in its ruling in not dismissing the complaint.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur, except INGRAHAM, J., who concurs in result.