Miley v. Broadway & Seventh Avenue Railroad — 29 N.Y. St. Rep. 107

Majority

p. 107

John B. Miley, Resp’t, v. The Broadway & Seventh Avenue R. R. Co., App’lt.

(Supreme Court, General Term, First Department,

Filed January 24, 1890.)

Headnote

Negligence—Evidence.

In an action for injuries caused by negligence, a witness was asked what was the probability of plaintiff's recovery, and answered that the limb was liable to trouble him for many years, and that he had known an injury of that kind to trouble a man and to be tender about thirty years. The court refused to strike out this answer Held, that this evidence was speculative merely and could not form the basis for the recovery of damages for permanent injury.

Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial.

Samuel B. Clark, for app’lts; Alfred B. Cruikshank, for resp’t.

This action was brought to recover damages alleged to have been sustained by reason of the negligence of the servants of the defendants.

There is only one question presented by the appellant upon this appeal, and that is that there is no evidence in the case sufficiently certain to justify the inference that the injuries received by the plaintiff would be permanent, and that, therefore, the court erred in refusing to charge that there was no evidence in the case which would justify the jury in awarding the plaintiff damages ■ as for a permanent injury, and that it was error for the court to charge the jury that if they found that the plaintiff had sustained permanent injuries that they might make compensation for the same.

The only evidence as to whether the injury would be permanent or not was the evidence of Dr. Bradley, who after testifying as to the plaintiff’s injuries was asked this question:

Q. What is the probability of his recovery ? A. The limb is liable to trouble him for many years; I have known it to trouble a man, an injury of that kind, and to be tender about thirty years.

The defendant’s counsel moved to strike out this answer as incompetent and speculative, which motion was denied and an exception taken.

This evidence within the rulings of the court of appeals could not form the basis for permanent injury.

It comes clearly within the rule laid down in the case of Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y., 305 , and the rule also adverted to in the case of Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y., 61 ; 23 N. Y. State Rep., 729, in no way justifies the use which was made of it in the case at bar.

The question may have been proper enough but the answer was clearly speculative. It gave consequences which were contingent, speculative or merely possible and not those consequences which are reasonably to be expected to follow an injury, and therefore could not form a basis for the recovery of damages for permanent injuries.

The judgment and order appeared from should be reversed and a new trial ordered with costs to the appellant to abide the event.

Daniels, J,, concurs.

I concur upon the ground that the answer was not responsive and should have been stricken out