Hunter v. Third Avenue Railroad

The plaintiff, a professional driver, was on April 30, 1895, at about 2:50 p. m., driving through Twenty-Fourth street from Second to Third avenue. When he approached the Third avenue crossing he looked up and down the track. He noticed an uptown car just leaving Twenty-Third street,, and a car coming down about one-half to three-quarters of a block away from Twenty-Fourth street. His horse’s head was then five feet away from the east or north-bound track. The plaintiff kept on across the avenue, but, before he could clear the westerly or downtown track, his hind wheel was struck by the downtown car, his wagon was jammed against a pillar of the elevated railroad, and he was thrown out of the wagon and received the serious injuries complained of. The plaintiff drove the horse to show an expected buyer how gentle it was. He was driving at the rate of S miles an hour, and when halfway across the west track the car was about 18 feet away from him. There is a down grade on the cable road at this point, and the car came so fast that there was no means by which the plaintiff could escape the collision. The plaintiff was certainly not guilty of contributory negligence per se. It was for the jury to say, under all the circumstances, whether he was free from any fault contributing to the injury, and they found in his favor on that issue. The degree of care to be used in crossing the tracks of a street railway is quite different from that which must be exercised in crossing a steam railway. Wendell v. Railroad Co., 91 N. Y., at page 429. At the intersection of streets the rights of street-railway

“The plaintiff’s driver, proceeding along Twentj'-Fourth street, approached ’Third avenue from the east; and, when within five feet from the defendant’s easterly car track, he observed a car upon that track approaching from a point one block distant, and another car approaching upon the westerly or downtown ■ track at a distance of three-quarters of a block. When his wagon, driven at an ordinary speed, was upon the westerly track, this second car was suddenly dis- - .covered to be but 18 feet away; and, despite his efforts to escape, the collision occurred. * * * In view of the position of the vehicles, it was certainly not "the plaintiff’s duty to wait for the ear to pass. He had the right to rely upon 'the observance by the gripman of reasonable care when he attempted to cross the tracks at the point noted, and the attempt itself was obviously justified. The point where the question of the plaintiff’s exercise of care arose was when the ■car was three-quarters of a block away, not when it had come within 18 foot ■of the wagon, through the entire disregard of the plaintiff’s rights upon the part ■of the individual controlling it. Were it negligence for a driver to attempt a ‘Crossing under such circumstances, it might be urged that the highway in question were better closed to all except the employes of the railroad company.”

The evidence in this case, as in that, clearly authorized the finding of the jury that the defendant was negligent.

The exception at folio 65 is frivolous. The court said to the plaintiff’s attending physician, “You may describe at length what you found to be this man’s condition,” and the witness accordingly stated it. This was proper, and the exception thereto unavailing. The complaint specifically charged that, in consequence of the injuries, the ■plaintiff was “made sick, sore, and disabled”; and the physician who •attended him was properly allowed to describe the nature and extent of the sickness and disability, and that is all he did. The defendant’s counsel, on the conclusion of the charge to the jury, referring to this testimony, said, “That there is no evidence of pleurisy, and the jury may not consider pleurisy, as it had not been pleaded,” to which the court replied, “Whatever evidence has been given in regard to pleurisy is before you [the jury], and it is for you to attach such, importance to it as you think fit.” To this the defendant excepted. The judge in his charge had not said a word about pleurisy, and the attention of the jury was first called to it by the defendant. Under the specific allegation in the complaint before referred to, the plaintiff’s physician had described the plaintiff’s physical condition,

“Upon the trial, plaintiff gave evidence tending to show that he had a disease of the spine, of a permanent nature, as the result of his injuries. This evidence was objected to * * * on the ground that the plaintiff had not alleged such . a result from the injury in his complaint. We think the complaint is sufficient. It alleges that he suffered great bodily injury; that he became, and still continues - to be, sick, sore, and disabled,” etc. * * * “These allegations are sufficient . to authorize proof of any bodily injury resulting from the accident.”

The exception is therefore without merit.

At folio 68 the following question was objected to as incompetent: • “From the condition that you found this man in, and the subsequent treatment you gave him, could you state with reasonable certainty what the injuries he received had come from?” This question calls for “Yes” or “No.” No motion was made to strike out the answer of ' the witness as not responsive, or upon any other ground, and defendant’s objection is therefore unavailing. Vinegar Co. v. Schlegel, 143 N. Y., at page 543, 38 N. E. 729 . If objectionable at all, it was merely as to the form of the question; and that was cured by the answer, which was accepted by the defendant. As a matter of fact, the witness’ reply was in no respect prejudicial to the defendant, for he answered, “Taking the history of the case, I should say undoubtedly - it was from this accident.” But the question was competent, for a physician may tell whether the physical condition in which he found. an injured person could have resulted from an injury. Turner v. City of Newburgh, 109 N. Y. 301 , 16 N. E. 344 . In the case cited the court, at page 309, 109 N. Y., and page 347, 16 N. E., said, “It is perfectly competent to furnish the jury with evidence of the present physical condition and bodily sufferings, and with the opinions of" competent physicians as to whether such could have"resulted from the accident.” See, also, Clegg v. Railway Co., 1 App. Div. 207 , 37 N. Y. Supp. 130 . In Thompson v. Railway Co., 11 App. Div. 182 , 42 N. Y. Supp. 896 , cited by appellant, the plaintiff sought to prove by - an expert—not the attending physician—what the plaintiff would ‘ probably be suffering from in case a certain mode of treatment were • administered, and such evidence was properly held hearsay. The-difference between such a question and the one under consideration - is obvious.

At the conclusion of the charge the defendant’s counsel also said,. “That there is no evidence of permanent injury, and they may not find anything for permanent injury, if they find at all.” The court replied, “I instruct the jury that the plaintiff has not claimed in his • complaint damages for permanent injury, but I submit the evidence • as to his present condition to the jury for what it may "be worth.”' While it is the absolute right of counsel to submit propositions of law bearing on the evidence, and the duty of the court to instruct the jury

We find no error, and the judgment must be affirmed, with costs. All concur.