Smith v. New York City Ry. Co. — 90 N.Y.S. 1061

Majority

p. 1061

SMITH v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Term.

December 7, 1904.)

Headnote

1. Tbial—Objection to Evidence—Motion to Stbike.

In an action for Injuries, an objection that plaintiff’s evidence did not sufficiently identify the injury with the one found by a physician two days after the accident should have been suggested at trial, and a motion at the close of plaintiff’s case to strike the physician’s testimony as not connected with the accident was properly denied.

p. 1062

Appeal from Municipal Court, Borough of Manhattan, Tenth District.

Action by Mary Smith against the New York City Railway Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Argued before FREEDMAN, P. L, and BISCHOFF and GILDERSLEEVE, JJ.

Henry W. Goddard and William E. Weaver, for appellant.

Joseph H. Radigan, for respondent.

The contention that the court erred in denying the defendant’s formal motion, at the close of the plaintiff’s case, to strike out the physician’s testimony as not connected with the accident, is not well founded. The plaintiff’s testimony sufficiently identifies the injury with that found by the physician two days after the accident, and, if the defendant claimed this lapse of time sufficient to raise a doubt, the point should have been suggested at the trial, in order that the plaintiff might give further testimony, if necessary, to exclude the inference that she had again been injured, in the same way, during the interval. This, the only ground of appeal presented, being without merit, the judgment is affirmed, with costs. All concur.