Wood v. New York Cent. & H. R. R.

On the 26th day of April, 1902, the plaintiff—a young man, 21 years of age—was riding in a buggy with his father along Chestnut street, in the city of Corning. The buggy was drawn by one horse, which the plaintiff was driving, and which was owned by him, and was steady and gentle. The defendant’s tracks, five in number, cross Chestnut street, and the view of a train approaching from the west is cut off to a traveler going south along this street. On the day in question there were cabooses on the two northerly lines of track, numbered 1 and 2, and these cabooses came closely to the sidewalk on the west side of the street.. The plaintiff and his father, as they approached the crossing, observed the gates were down, and a freight train was going east. After this passed, the gates were raised, and the plaintiff drove along until his horse was upon track 3, when an engine upon the same track, and which gave no signal of its approach, and was concealed from the view of the occupants of the buggy, came toward them. Mr. Wood, Sr., thus described the occurrence, including the efforts to avoid a collision:

' “We drove on to the track, and as we drove hy the cabooses the mare stepped over on the other track, and there was an engine come right spat upon Will and I, and he jerked the mare back and throwed her to one side, and hollered, and she started down the track with him, and as she started he fell over. He went forward right on my side. After he went forward on my side, he was thrown back against the seat, and the mare went over the cross-walk, down around the rails, and circled around and came up next to the standard, right through over to the gashouse. * * * At the time my son was thrown back from his position over in my direction into the buggy, the horse made a spring. That is what throwed him back there. I have examined the seat of the buggy since then, in the corner he was sitting. Q. What was the condition of the seat? A. Broke the seat from the box. The seat was not broken before, and it was broken immediately afterwards, when I examined it.”

He further testified that immediately, upon getting the horse stopped, the plaintiff spit blood freely, and this continued until after he reached home. The hemorrhages continued, and the physicians testified he has been growing progressively worse; that tubercular trouble developed, and the plaintiff at the time of the trial and for some time before was suffering from tuberculosis. Dr. Argue, the attending physician, attributed the injuries “to the muscular strain, and also the severe shock which hé received when he fell back in the seat, and when he passed over the rough surface.” Dr. Goff, the other physician, corroborated Dr. Argue; testifying:

“In my opinion, the hemorrhage was the result of the muscular exertion accompanied by the shock to the body, or jar to the body, by reason of the fall back against the seat, and the consequent jar or jam of the wagon in passing over the rough ground.”

These witnesses agreed in saying the injury was not the result of fright.

“An injury, however, sufficiently severe to produce a shock, or which in fact produces a shock, presents an entirely different question. Shock is not fright. The latter may be a producing cause of the former, and where it is the sole producing cause there can be no recovery; but when it is associated with actual injury it may be considered, and where the injury and the fright concur and result in producing shock, out of which arises damage, it is sufficient upon which to base a recovery.”

Another potent distinction from the Mitchell Case is that the injuries resulted immediately from the shock, and the same manifestations of their existence have been continuous ever since.

When the plaintiff was sensible of the imminent peril confronting him, like any sane man he put forth his whole strength to avert the catastrophe. This not only was the involuntary impulse of a person in threatening danger, but it was the duty of the plaintiff to endeavor to avoid the collision. If, by error of judgment in this perilous situation, he had driven across the track, or turned his horse toward the

As already intimated the plaintiff’s decline has been substantially uninterrupted, until consumption has supervened, ascribable to the shock, and the other features of the accident, already mentioned, as the physicians testified. It is contended strenuously that the consumption is not the natural or proximate result of the injuries, and consequently that disease may not be taken into consideration in estimating the damages. We are not now called upon to decide that specific question, as, upon a new trial, with all the evidence in,, the case may be entirely different, in this aspect of it. We assume, however, if there is a progressive, complete connection between any disease and the injuries inflicted, such disease may be taken in estimation by the jury, as the plaintiff is entitled to recover for any damages which are the proximate result of the injuries. Ehrgott v. Mayor, etc., of N. Y., 96 N. Y. 264 , 281, 48 Am. Rep. 622 ; Eichholz v. Niagara Falls H. P. & M. Co., 68 App. Div. 441 , 73 N. Y. Supp. 842 ; Tait v. Buffalo Ry. Co., 55 App. Div. 507 , 67 N. Y. Supp. 403 ; Purcell v. Lauer, 14 App. Div. 33 , 43 N. Y. Supp. 988 ; Hurley v. N. Y. Brooklyn Brewing Co., 13 App. Div. 167 , 43 N. Y. Supp. 259 ; Turner v. Nassau Electric R. Co., 41 App. Div. 213 , 58 N. Y. Supp. 490 . It is a matter to be determined by the jury, and the causal connection between the injuries and the existing disease must depend in a considerable degree upon the evidence of physicians. The .right to embrace in the recovery damages for an existing disease may not be lost by reason of the length of time which has elapsed between its discovery or inception and the infliction of the original injuries, nor upon the character of the disease. The fact may be established that the disease was the result of the injuries; that the association of the two is by a direct line; and their connection is not to be based upon conjecture or speculation. If their unbroken connection is thus, demonstrated, then the plaintiff’s cause of action may include the disease. The judgment should be reversed and a new trial granted,, with costs to the appellant to abide the event.

Judgment reversed and new trial granted, with costs to the appellant to abide the event. All concur.