Rosevelt v. Manhattan R. Co. — 37 N.Y. St. Rep. 894

Majority

p. 894

Mary J. Rosevelt, Resp’t, v. The Manhattan R. Co., App’lt.

(New York Superior Court, General Term,

Filed March 9, 1891.)

Headnote

1. Negligence—Evidence.

In an action for injuries alleged to have been caused by defendant’s negligence, evidence of a physician that when he last examined plaintiff's arm she had persistent pain in it is not objectionable on the ground that it involves an assumption that there was pain at the present time.

8. Same,

Evidence as to the extent of injury to the car in which plaintiff was riding at the time of the collision has no relevancy to plaintiff’s injuries or the force of the collision, and is properly excluded.

3. Same—Pleading.

An allegation in the complaint that the injuries are permanent is not necessary to authorize the admission of evidence as to their permanency.

p. 895

Appeal from a judgment entered upon the verdict of.a jury in favor of the plaintiff for the sum of §2,480.95, damages and costs, and from an order denying defendant’s motion for a new trial.

Action to recover damages for personal injuries to the plaintiff which it was alleged she received while a passenger on one of defendant’s trains on Third avenue, by reason of a train on the Thirty-fourth street branch line colliding with the one in which she was riding at the time of the accident

William G. Bussey, for resp’t; Davies & Rapallo, for app’lt.

This is an appeal from a judgment and an order •denying a motion for a new trial.

The action is for damages for personal injuries sustained in consequence of the negligence of the defendant. The injury alleged was, in part, of plaintiff’s arm. A physician who had attended the plaintiff testified in her behalf that when he ■ last examined her arm she had persistent pain on motion. Defendant’s request to strike out this testimony upon the ground that it involved the assumption that there was pain “ now ” was properly denied. A fair interpretation of the answer shows that it did not involve the assumption claimed. A question put on behalf of the plaintiff was: " You examined her (plaintiff) a few days ago, and she told you while you were examining her that she was suffering from pain in that arm ? ” This question was objected to upon the ground that the witness could not testify as to the plaintiff’s having pain, and upon the ground that it involved an assumption that there was pain “ at the present time.” The question was not objectionable upon the grounds stated. The answer was unobjectionable, except as not responsive.

A question as to the permanency of the injury was objected to ■as not having been alleged in the complaint. This objection was properly overruled, as there was no necessity for such an allegation in the complaint. Curtiss v. The Rochester & Syracuse R. R. Co., 20 Barb., 282 ; affirmed, 18 N. Y., 534 .

The exclusion of defendant’s proffered evidence as to the extent •of the injury to the car in which the plaintiff was a passenger was proper, for the extent of the injury to the car, of itself, had no relevancy to the plaintiff’s injuries or the force of the collision described by the plaintiff.

" I have examined the other exceptions in the case and find none of value. The judgment and order should be affirmed.

Sedgwick, Oh. J., concurs.