Schoonmaker v. Niver

This is an action by the plaintiff to recover damages for an injury to his person alleged to have been committed by the defendant. The action was tried by the-court and jury, and a verdict was rendered in favor of the-defendant, and no motion was made by the plaintiff in the-count} court for a new trial upon the facts, or to set the-verdict aside for any cause. No exception was taken to the-charge. Under such circumstances we -must assume that-the-jury determined that no cause of action was established by the plaintiff; and this court cannot, in view of the record before it, inquire info the propriety of such verdict-upon the merits of the action. If the case were properly before us for review upon the facts, the evidence is so conflicting that this court would be disinclined to interfere-with the verdict.

Some exceptions were taken by the plaintiff’s counsel during the progress of the trial, which mainly relate to the-question of damages, and in view of the verdict rendered that question would seem to be immaterial, and consequently the exceptions so far as they relate to such question-must be regarded unavailing to the appellant, Furthermore the questions addressed by the plaintiff’s counsel to the-wit-nesses as to whether the plaintiff complained of pain seem to have been too unrestricted as to the time when the declarations of the plaintiff were claimed to have been made, and otherwise objectionable within the case of Roche v. The B. C. and N. R. R. Company, 105 N. Y., 295 ; 7 N. Y., State Rep., 361. In that case the court say “but evidence of simple declarations of a party made some time-after the injury and not to a physician for the purpose of being attended to professionally, and simply making the statement that he or she is then suffering pain, is evidence-of a totally different nature, is easily stated, liable to gross-exaggeration and of a most dangerous tendency while the former necessity for its admission has wholly ceased.” The other exceptions relate to the examination in regard to-the character, and credibility, of the parties respectively, who were examined in their own behalf as witnesses upon the trial. The trial court allowed considerable latitude of examination upon that subject, but considering the discretion which he was authorized to exercise, and the result of such examination as shown by the evidence, we are per suaded that the case of the plaintiff has not been prejudiced by any erroneous ruling of the court, in that respect upon, the trial. The j udgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concur