Elsas v. Second Avenue R. R. Co. — 30 N.Y. St. Rep. 414

Majority

p. 414

Myer Elsas, Resp’t, v. The Second Avenue R. R. Co., App’lt.

(Supreme Court, General Term, First Department,

Filed March 14, 1890.)

Headnote

1. Negligence—Evidence.

In action to recover for damages caused by negligence testimony of a physician that on any unusual exertion or exposure some pain may be suffered, or that a change of weather might make the injury painful at times, is too conjectural and speculative and is therefore inadmissible.

.2. Same—Damages.

To entitle a plaintiff to recover damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. It is not enough that the injury may develop into more serious conditions nor even that they are likely to so develop.

Appeal from a judgment on verdict.

Augustus iS. Hutchins, for app’lt; John P. Rothschild, for resp’t.

This action was brought to recover compensation in damages for injuries resulting to the plaintiff from the defend- . ant’s negligence. During the trial Dr. Nichols, who was examined .on plaintiff’s behalf and who described his injury, was asked “ From what you know of the nature of such an injury, is the result that arises therefrom such that pain and suffering might be Permanent ?” This was objected to as a conjecture and excluded. rater on the learned justice presiding suggested to the plaintiff's counsel that he thought it quite within his province to ask Dr. Nichols if in his opinion the plaintiff would suffer at all or would probably suffer from the effects of the injury, upon which the counsel said: “ I will put the question in that way.”

The defendant’s counsel objected to the question in that form as too remote and conjectural but the objection was overruled, and exception was duly taken.

The witness then answered: “From my experience of that kind of injury, my opinion would be that on any unusual exertion or exposure, some pain may be suffered there. The use of the joint will, however, remain the same.”

The defendant’s counsel moved to strike out the latter part of the answer as too conjectural, but the motion was denied, and exception duly taken. The objectionable part was, doubtless, the statement “ some pain may be suffered there.” It was clearly subject to the criticism of the defendant’s counsel. Inquiry as to the effect of the injury in case of a change of weather was also made and this question asked :

“ Taking your opinion as a doctor who has treated cases of this kind frequently, as you say, where an injury of that character has taken place, would, in your opinion, a change of the weather, such as rainy weather or damp weather have a temporary effect upon an injury so as to make it painful at such times ? ” and the answer was, “It might.”

The defendant’s counsel moved to strike out the answer upon the ground that it was too conjectural, but the motion was denied and exception duly taken. These answers were equally as objec

p. 415

tionable as the question excluded, and should have been stricken out. It is not enough that the injuries received may develop into-more serious conditions than those which are visible at the time of the injury, nor even that they are likely so to develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury. Strohm v. The N. Y., L. E. & W. R. R. Co., 96 N. Y., 306 . See also Miley v. Broadway & 7th Ave. R. R. Co., 29 N. Y. State Rep., 107. When the witness said some pain “ may be suffered there,” and a change of weather “ might ” make the injury painful, it was contingent, speculative or merely possible proof, which is expressly condemned in the case just cited.

The reasonable certainty demanded by the rule is not stated, or such a degree of probability shown as amounts to such certainty.

The rule is clearly stated; seems to be easily understood and yet is departed from. The question as to a change of weather was properly framed, inasmuch as it asked “would such ” a change have an effect upon the injury, and if the witness had answered yes, or it would, the objection would not have existed. The answer, “ It might,” presented a possibility or a speculation on the subject indicating a doubt in the mind of the witness. Defendants are not called upon to pay for such contingencies and, unless the rule prevailing as to the proof of damages is changed, will not be. When exposed to such danger the courts by appellate jurisdiction must, if applied to, protect them.

For these reasons the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Ordered accordingly.

Van Brunt, P. J., and Daniels, J., concur.