Lewis v. Brooklyn Elevated Railroad — 58 N.Y. St. Rep. 540

Majority

p. 540

Margaret Lewis, App’lt, v. Brooklyn Elevated Railroad, Resp’t.

(Brooklyn City Court, General Term,

Filed February, 1894.)

Headnote

1, Evidence—Negligence.

In an action for negligence, evidence as to injuries that will be “apt to attend a patient,” or that “may become permanent,” is inadmissible.

p. 541

3. Appeal—Haemless.

Where the jury have found that the plaintiff is not entitled to recover at all, the exclusion of proper evidence as to the amount of damages is not prejudicial.

S. Same—1Charg-e.

Where the charge fully covers the whole ground, the court is not re quired to traverse the same ground and charge requests that are simply ■cumulative.

Appeal from judgment in favor of the defendant, entered upon verdict, and from order denying motion for a new trial.

Edwin R. Root, for app’lt; Hoadly, Laicterbach & Johnson (William N. Cohen and Henry L. Scheuerman, of counsel), for resp’t.

Plaintiff brought this 'action to recover damages for injuries alleged to have been sustained by her though the negligence of defendant’s servants. Her claim was that she entered the Hewes street station of defendant’s road; that a train was standing there at the time; that the gate at the platform of the car she expected to enter was closed ; that the guard opened the gate and told her to hurry and get on ; that just as she had placed her foot on the platform of the car the train started; that she hung on as well as she could, and after being carried some distance the train was stopped and plaintiff was rescued from her perilous position in a bruised and injured condition. Plaintiff’s evidence was uncorroborated as to the guard’s opening the gate and telling her to hurry and get on.

The gateman of the defendant, who was on the platform of the car in question, denied that he opened the gate and told plaintiff to hurry and get on. He testified that the gate was shut when he held his hand up and said : ‘‘You are too late;” that plaintiff, however, put her foot on the edge of the platform outside of the gate and seized one of the upright stanchions of the car with a view of compelling her admission to the car, and just then the train commenced to move; that he used his utmost efforts to save plaintiff from injury, and that with the assistance of some of the passengers the train was stopped and plaintiff was rescued.

The jury found a verdict in favor of the defendant, and plaintiff appeals from the judgment entered thereon and an order denying motion for a new trial.

On this appeal the learned counsel forthe appellant calls our attention to two exception to the exclusion of evidence, and also to the refusal of the court to charge sundry requests made by him, which were duly excepted to, and on these exceptions he bases his claim to a reversal. The questions to the exclusion of which exception was taken were addressed to the physician of plaintiff, and were as follows: “ Q. From your experience as a physician, what are the principal effects that will be apt to attend a patient who has suffered the injuries you have described?” “ Q. Can you state, from your experience as a physician, any of the effects which usually attend such injuries as you have testified to, and which are or may become permanent?”

p. 542

We think both of the these questions were properly excluded as being vague and speculative. It will be noticed that neither of them is directed to the effect on the plaintiff of the injuries which she had sustained, but they are directed generally to the effects of such injuries on anybody and everybody who may have been unfortunate enough to have been strained, bruised and nervously affected just as was the plaintiff. Injuries such as the plaintiff sustained would unquestionably affect different persons in different degrees, according to sex, age and condition of health at the time, yet the questions objected to make no distinction. Evidence as to injuries that will be “ apt to attend a patient,'” or as to injuries which “may become permanent,” is purely speculative ; the questions involve the giving of evidence of future consequences which are merely possible, so far as the plaintiff was concerned-, and are, therefore, inadmissible. But, even were these questions admissible, plaintiff was not injured by their exclusion ; they relate only to the question of the amount of damages, and the jury have found by their verdict that plaintiff was not entitled to recover at all.

Some sixteen requests to charge were submitted to the learned trial judge, some of which he refused to charge and others of which he refused to charge further than as he had already charged on the points involved in such requests. We do not think that any of the exceptions thereto are tenable, and they do not strike us as of sufficient merit or importance to call for a discussion separately ; some of them are entirely erroneous, others have no-bearing on the issue submitted to the jury and others the learned trial judge had already substantially charged, and he was not called upon to repeat them. The charge was full and clear ; it defined accurately negligence and contributory negligence, fairly stated the contentions of the parties and explained to the jury the applications of those definitions to the matter in dispute, and seems to us fully covered the whole ground. This being the case, the learned trial judge was not required to traverse the same ground .again and charge requests that were simply cumulative.

We are of opinion that the judgment and order appealed from should be affirmed, with costs.

Clement,, Oh., J., concurs.

Judgment and order affirmed, with costs.