Moylan v. Second Avenue Railroad — 35 N.Y. St. Rep. 644

Majority

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Andrew Moylan, Resp’t, v. The Second Avenue R. R. Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 9, 1891.)

Headnote

1. Negligence—Street railroads.

Plaintiff signalled one of defendant’s cars to stop and it thereupon' slowed up and came almost to a standstill and he attempted to get on, but before he could do so the driver started up the horses and brought plaintiff in contact with a passing truck and injured him. Held, that it was not contributory negligence per se to attempt to get upon a car almost at a standstill, and that the questions of negligence were properly sent to the jury.

3. Same—Evidence—Hypothetical question.

It was not proved that plaintiff had no cold before the accident, but a

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hypothetical question stated a freedom from cold. The expert -witness testified that plaintiff's disease was chronic pleurisy and was such that it could only result from violence and not from exposure. Held, that the statement as to freedom from cold was immaterial and worked no harm.

3. Same—Damages.

Defendant’s injury resulted in pleurisy, which affected his earning capacity, and his proof tended to show it was permanent with an uncertain liability to grow worse and possibly tend to something else; while defendant’s testimony tended to show that a majority of such cases resulted in recovery, but five per cent were mortal. Held, that there was no error in allowing the jury to include damages for permanent injury in the verdict

Appeal from judgment in favor of plaintiff, entered on verdict for $1,000.

Action to recover damages for injuries alleged to have been caused by defendant’s negligence.

The hypothetical question referred to in the opinion was as follows:

“ Q. Assuming that a man in the condition of life of the plaintiff, in a fair state of health, who has not been suffering from any colds, is severely bruised by a collision between a car and truck, so that shortly thereafter he faints and is unable to leave his bed for a day or two, and has continuous pain in his right side, and you found him in such a condition as you discovered on your examination of plaintiff, to what would you attribute the condition?”

Augustus S. Hutchins, for app’lt; Frederick S. Massey (James C. Ghurch, of counsel), for resp’t

The plaintiff signaled one of the defendant’s street cars to stop for him.. The car in response to the signal stopped nearly, but not entirely. The plaintiff took hold of the stanchion near the middle of the car, which was an open one, and before he could get upon the car the driver started the horses attached to the car very fast and thereby brought the plaintiff in contact with a truck and occasioned the injury. The duty of a passenger-carrying railroad is to give a sufficient opportunity for the passengers to get on and off the car. That the passenger attempted to get on before the car fully stopped is not of itself contributory negligence. In the present case it plainly was not negligent upon the plaintiff’s part to attempt to get upon the car almost at a standstill and where it appears quite certain that he would safely reach the car but for the sudden starting up of the car before he had time to accomplish his purpose. The case is so similar in its facts to those contained in the case of Eppendorf v. The Brooklyn City, etc., Railroad, 69 N. Y., 195 , that it was proper to send the case to the jury both upon the question of defendant’s negligence and upon the question of freedom of plaintiff from all contributory neglect which contributed to the accident The hypothetical question was one which the evidence justified. The inference was fair that plaintiff was well and able to earn eighteen to twenty dollars per week as a brass and iron polisher. That after the accident he had a pain in the side and could only earn twelve dollars per week. That he could not work continuous and had to take rest at intervals. It was not proved that he had

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no cold before the accident and the hypothetical question stated a freedom from cold. The physician stated that the disease of the-plaintiff was chronic pleurisy and that it was of such a character that it was due solely and could result solely from direct violence and not from exposure. The statement in the question as to freedom from cold was carefully excluded from any effect upon the-answer and therefore harmed no one. As to the injury the plaintiff’s proof tended to show it was permanent with an uncertain liability to groty worse and possibly tend to something else. The defendant’s medical evidence tended to show that the disease “ in a majority of cases resulted in recovery.” That five per cent, were mortal.

Upon this evidence the jury could find an injury which was to continue in the future and could give damages for such injury. Ho possible further proof could be given in the case. There was an injury from a wound which occasioned pleurisy and prevented a proper purification of the blood from an inability to fully use the lungs. In half of the instances of such disease the patient got no-better during life. And five out of 100 die of the disease. Of necessity the question on this proof must go to the jury and the charge was free from objection in respect, thereto.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.