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Johnson v. Broadway & Seventh-Avenue Raiload

6 N.Y.S. 113 Court N.Y. Gen. Term Decision date 1889-07-02 English

Decision Majority — Pratt, J. · Concurring — Barnard, P. J.,

Contents

Majority

p. 113
Johnson v. Broadway & S. A. R. Co.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

1. Witness—Examination—Leading Questions.
In an action for personal injuries, the" allowance of a question to a physician as a witness, whether plaintiff could walk without a cane, is within the discretion of the trial court, on a general objection, though it is excepted to as a leading question.
p. 114
3. Evidence—Expert—Probable Result oe Injuries.
One who has been a physician and surgeon for 18 years, and testifies that he had examined plaintiff, and describes the latter’s condition, may give his opinion as to the probability of plaintiff’s recovery.
3. Damages—Instructions.
The physician having testified that, in his opinion, plaintiff would not recover from his injuries, the court properly refused to charge that there was no evidence to justify any allowance for future damages, or for a permanent disability.
Appeal from special term, Kings county.
Action for personal injuries by Charles F. Johnson against the Broadway & Seventh-Avenue Railroad Company. Judgment on verdict for plaintiff, and defendant appeals.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
Hoot á Clarke, for appellant. J. Edward, Swanstrom, for respondent.

Plaintiff was injured while alighting from defendant’s car, in which he was a passenger. There was a conflict of testimony on the trial as to whether the injuries were caused by the sudden starting of the car, after it had been stopped at plaintiff’s request, and while he was in the act of alighting therefrom, or whether they were the result of plaintiffs attempt to alight from the car while it was in motion, and before it had been stopped. That question was properly left to the jury. We are unable to see that any error was committed on the trial. The exception at folio 62,[1] which the appellant now seeks to sustain on the ground that the question was leading, was taken under a general objection to the question, without specifying any ground. It would have been in the discretion of the court to allow the question, even if it had been objected to on the ground that it was leading.

The question at folio 63[1] was properly allowed. The witness Dr. Lumbeck had testified that he had been a physician and surgeon for 18 years; that he examined plaintiff with respect to his condition, and found him partially paralyzed in the lower part of the spine and left side, and his left leg and left arm in a partial state of paralysis; that there was a defective sensitiveness in the small of the back, the left leg, and left arm; and that those conditions made him half useless or half powerless, and perceptibly lame. Ample foundation for the question had thus been laid.

Mor was there any error in the refusal of the court to charge as requested at folio 93.[2] Dr. Lumbeck had testified that, in his opinion, from the examination he had made of plaintiff, he would not recover from his injuries. That testimony was positive as to plaintiff’s injuries. The judgment and order appealed from should be affirmed, with costs.

Dykman, J., concurs.

(concurring.) The evidence shows that the defendant failed to give the plaintiff, who was a passenger, time to get off from the car when he arrived at the end of his journey. The conductor stopped the car, and before the plaintiff could put his foot tipon the ground, and while he was on the step of the back platform, in the act of stepping off, the car gave a jump forward, and threw the plaintiff at full length upon the street. The injury was very severe. A partial paralysis of the left side of the plaintiff resulted. The accident happened in September, 1887, and the plaintiff could do no work until March, 1888. Since then he could not do the same work, and his injuries caused him a loss of $25 per week up to the time of trial, in January, 1889. Since plaintiff has been at work he has constant pain in his

1 These questions appear in opinion of Barnard, P. J., infra.

2 Defendant here requested a charge “that there is no evidence to justify any allowance for future damages, ” or, “as for a permanent disability. ”

Concurrence

p. 115
side, and cannot bend to the floor and lift heavy things up, and suffers from sleeplessness.

There was proof given tending to show that the partial paralysis continued, and that the plaintiff is to a certain extent lame, and that he will never recover. Three objections were taken on the trial. A direct question was asked by the plaintiff’s counsel of the physician, whether the plaintiff could walk without a cane. (Folio 62.) A general objection was taken, and the answer permitted. Leading questions are always discretionary, and this one certainly did no harm. The fact was proven as to the paralysis of the left side, and that one side was useless. The witness did not answer the question further than to say that the paralysis made a perceptible lameness.

The physician was asked whether, in his opinion, the plaintiff would recover. (Folio 63.) The question is a proper one. The witness had been a surgeon for 18 years, and was qualified to give an opinion as to the result of the injury, whether curable or not. If this proof were proper, then it was not error to permit the jury to consider how far the plaintiff was disabled, and to consider that in arriving at a verdict. Ho other exceptions are presented as a reason for a new trial. The judgment should therefore be affirmed, with costs.