Dieffenbach v. New York, Lake Erie & Western Railroad

On the morning of the 16th day of March, 1893, the plaintiff took passage on a train on the Erie Railroad, from Binghamton to New York. While his train stood on the track at Laekawaxen, and the plaintiff was lying in his berth in the sleeping ear, the following train crashed into the car in which the plaintiff lay, tore it to pieces, and, as a result of the collision, the plaintiff was very seriously injured. He received many bruises about his head and body, and was removed from the wreck in an unconscious condition, and, after being kept a short time at the place

Two or three exceptions were taken upon the trial of the action, but they are of no particular importance, and the defendant makes no point of them on this appeal. It bases its appeal solely upon the ground that the damages were excessive. That the accident occurred, as alleged by the plaintiff, through the negligence of the defendant, and that the defendant is liable to respond to the plaintiff in whatever sum shall be necessary to compensate him for his injuries, cannot be denied, and is not disputed. It appeared from the evidence that the injuries which were received were very severe. He had bruises and a wound in the back, some of the large muscles being torn from their attachment to the spine. His right arm and five of his ribs were broken, and there were serious cuts upon his legs. He was kept in the hospital for six days, and was kept in bed until about the middle of June after the accident. At the end of June he was able to go out somewhat, and hobble about with a crutch. It was practically a year before he was able to use his arm, and at the time of the trial, in January, 1896, he was still .suffering severely from the injuries which he had sustained almost three years before. When the accident occured, on the 16th of March, 1893, the plaintiff was twenty-eight years old. He was .strong, robust, healthy, and, so far as appears from the testimony, in perfect physical condition. He was employed as a traveling salesman, and was earning at the time of the accident about $3,600 a year, in addition to his expenses, which were paid by the firm who employed him. It appeared from the testimony that, from the time of the accident until the time of the trial, he had been utterly unable to do any work, or earn any salary whatever. His •doctor’s bills, up to the time of the trial, had amounted to upward of $1,000. These actual money losses which he had incurred up to the time of the trial, in January, 1896, were about $9,100; and the jury might properly have given to the plaintiff this sum of money to recompensate him for salary that he had lost from the time of the accident to the time of the trial, and his expenses, without taking into consideration any compensation for the suffering and pain which he had endured during all those years. In Addition to that, there was considerable evidence bearing upon the •question of the permanency of the plaintiff’s injuries. That he

There was evidence from which the jury might have fou-nd that the ultimate recovery would take at least five years. Dr. Wilcox, who attended the plaintiff from shortly after the accident, testified that his condition was reasonably certain to continue for a long time. ' He said that from the condition in which the plaintiff was at the time of the trial, nearly three years after the accident, it would be several years before he was reasonably better. The precise time, he said, it would be utterly impossible to fix. He would not be much-better for three years, and probably it would be at least five years before he would be recovered. The witness stated that the plaintiff had been improving slowly, but that his improvement had not been steady or progressive. His testimony was corroborated by that of Dr. King, who thought that there had been no steady and progressive improvement. He said that he

The rule is well settled that in cases of this kind the plaintiff can only be allowed to recover for such permanent injuries as, in the ordinary course of nature, are reasonably certain to ensue. Strohm v. Railroad Co., 96 N. Y. 305 . Upon that subject the expert witnesses may state what, in their judgment, is reasonably certain to be the future course of the plaintiff’s disability ; taking into consideration the nature of the injury, the extent of his recovery at the time of the trial, the rapidity or slowness of his recovery, the constitution of the man himself, and all those other conditions upon which a judgment of a physician is ordinarily based. That testimony, in connection with the physical condition of the plaintiff, is to be considered by the jury ; and it will be for them to say, ultimately, whether a permanent disability is reasonably certain to ensue, and, if it is not so, then how long it is probable that the plaintiff will suffer from the injuries. When they have concluded upon that subject, the question of the amount of damages necessary to compensate him for his future suffering is entirely one for their decision. In this case the jury might have found that, while a permanent recovery was probable, it would take several years, at least, before the plaintiff was able to go about his ordinary avocations, and that during all that time he would be unable to earn any money, would be put to expense for doctor’s bills, and would be compelled to suffer more or less pain as the result of the injuries which had been inflicted upon him. They might have found, too, that even after that time, while he 'would recover so far as to suffer very little pain, and be able to do some light work, he would never regain his former robust state of health, or be the man he was before. If they came to the conclusion that it would be two years before the plaintiff would be able to do any work, the actual pecuniary, loss which he would suffer during that time, by his inability to earn a salary which he had been receiving before the accident, would be $7,200. In ad

The judgment and order should be affirmed, with costs.

All concur.