Boland v. New York City Railway Co. — 96 N.Y.S. 262

Majority

p. 262

(48 Misc. Rep. 523)

BOLAND v. NEW YORK CITY RY. CO.

(Supreme Court, Appellate Term.

November 24, 1905.)

Headnote

,1. Evidence—Expert Testimony — Personal Injuries — Evidence — Competen cy.

In an action for injuries, medical testimony that the accident had a great bearing on plaintiff’s nervous condition, that there were at the time of the accident other conditions which would lead to nervousness, and that nervousness- could have come from the accident, was not competent evidence to go to the jury as showing that the injuries caused! the condition.

.3. Trial—Incompetent Evidence—Motion to Strike.

Where the questions asked a witness are not objectionable, but the evidence elicited thereby is insufficient, the adverse party is not precluded from moving to strike out the evidence because he made no objection to the questions.

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

Action by Jennie Boland against the New York City Railway Company. From a judgment for plaintiff, defendant appeals.

Reversed.

' Argued before SCOTT, P. J., and GILDERSLEEVF and Mao LEAN, JJ.

William F. Weaver, for appellant.

Edward A. Alexander, for respondent.

The plaintiff sues, for damages resulting from an accident which happened in September, 1904. The direct physical re- • suits of the accident were comparatively slight, and the principal basis alleged for substantial damages is that, as is said, the plaintiff suffered nervously, as a result of the accident, down to the very day of the trial. It is obvious that in such a case the burden rests upon the plaintiff to connect with a reasonable degree of certainty the alleged result with the cause. To do this the plaintiff produced as a witness the physician who attended her. He testified as to plaintiff’s nervous condition at the trial, and that, so far as he could remember, she had been in a normal condition before the accident. He then testified that the accident had a “great bearing” upon her present nervous condition, that it has “a great deal to do with it,” that there were at the time of the accident “other conditions of affairs which would lead to nervousness,” that the accident “had partially to do with” her nervous condition, that her nervous condition “could come from the accident,” and the like. The total effect of the physician’s testimony went no further.than to establish that the nervous condition might have been caused by the injury. This was not competent evidence to show that the injury did 'cause the condition (Raynor v. Met. St. Ry. Co., 106 App. Div. 449 , 94 N. Y. Supp. 632 ), and the defendant’s motion that the evidence be stricken out should have been granted.

This is not a case where the objecting party is not precluded because he failed to object to the questions, because the questions themselves were not, as a rule, objectionable, although the evidence, when elicited, proved to be insufficient, and should have been withdrawn from consideration as not tending to prove the only fact as to which it could

p. 263

in -any sense be considered pertinent. We must assume that-this evidence affected the judgment, for in no other way can we account for-the damages, which are much larger than would ordinarily be given-for such injuries as the plaintiff proved, outside of her continued state of nervousness.

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