Connelly v. Manhattan Railway Co.

There is evidence enough in this case to sustain the judgment, and I should be in favor of affirmance were it not for an error which it seems to me was committed by the learned trial judge in the admission of testimony. Dr. Adolph M. Lesser was examined as a witness to prove the extent and nature of the injuries sustained by the plaintiff. He testified that he first saw the plaintiff about a fortnight after the accident and found him then suffering from

“The plaintiff in this case claims to have been thrown down in a car of the elevated railroad, on his back. Did you hear his statement of the manner in which he was thrown down? A. Yes, sir; I heard that.”

Thereupon the court put the following question:

“ Q. Were those injuries, received in the way in which he lias stated, sufficient to produce the results and conditions you discovered on your examination.”

Counsel for defendant objected to the question on the ground stated to the question put by Mr. Shaffer to the witness. The court overruled the objection and counsel for defendant duly excepted.

“A. It was quite sufficient to produce that injury; to produce meningitis. It was quite sufficient to produce Mr. Connelly’s difficulty.”

The witness then went on to say that meningitis was a progressive disease, and there can be little doubt that his testimony on this subject tended to augment the damages awarded to the plaintiff.

I do not see how the evidence thus admitted can be distinguished from that which led to the reversal of the judgment in Page v. Mayor (32 N. Y. State Rep., 563) and The People v. McElvaine ( 121 N. Y., 250 ). The objection to the question allowed to be answered was that it permitted the witness to assume for himself, from the testimony of the plaintiff, the facts upon which he based his opinion, without informing the jury what he supposed or believed such facts to be. No doubt it is not an uncommon practice in examining medical witnesses to ask them whether they have heard the testimony of the person who has deposed to the circumstances

For these reasons I think we ought to reverse the judgment and order a new trial.

Yan Brunt, P. J., concurred.

(dissenting):

This case took a somewhat unusual turn at the trial. It is an action for damages for a personal injury to the plaintiff while a passenger on one of the defendant’s cars. The injury resulted from a collision of two trains upon the defendant’s elevated railroad at Seventy-sixth street and Third avenue, in this city, on the 12th of March, 1888, the day of the “ great blizzard.” The defendant, in its answer, denied the fact of the collision and all charges of negligence. Upon the opening of the trial, however, it asked leave to amend its answer so far as to admit the collision. It also admitted that the fact of such collision, of itself, entitled the plaintiff to recover damages, and it asked leave to further amend its answer by setting up “ the affirmative defense that the accident happened, notwithstanding the exercise of the highest degree of care on the part of the defendant; that it was an unavoidable accident within the meaning of the law, and was attributable to what is known in the law as an act of God, and could not be prevented by the exercise of that degree of care which the law required of the defendant under the circumstances existing at the time the accident happened.” This motion was granted, and the court allowed the answer to be amended accordingly. The case was then tried upon the theory that the affirmative was upon the defendant except as to.v the amount of damages. Accordingly, the plaintiff contented

The defendant’s first point is that it established the fact that the accident was unavoidable and could not have been prevented by the exercise of that degree of care which the law required of it under the existing circumstances, and that, therefore, it was entitled to the direction of a verdict in its favor. We have read all the evidence with great care, and we do not think that this contention is well founded. There was, in our judgment, enough to go to the jury upon these questions. The appellant has presented an able and exhaustive argument in support of this contention, but we think it was competent for the jury, upon the whole case, to say that the self-imposed burden had not been fully met. It was, indeed, a fearful day, and the defendant was entitled to, and doubtless received, the full benefit of this consideration. The storm, howevér, did not absolve the defendant from its duty to exercise that degree of care which the circumstances called for. It rather demanded more than ordinary vigilance and vigor. W e think it was proper for the jury to consider several circumstances tending to show a want of proper -care. The car in which the plaintiff was standing at the time of the collision was blocked at the Seventy-sixth street station. It had been standing there for twenty minutes. One of the defendant’s rules is that “ when trains are blocked, agents will immediately notify the entire line, display the card£ Line Blocked,’ and sell no tickets unless passengers insist oii purchasing.” Was this notice given? If not, why not ? And if given, why was a train permitted to proceed, from the Eighty-fourth street station, in the direction of this “ -block ? ” Why, at least, were the engineers of that train not notified of the “ block ” and ordered to proceed from Eighty-fourth -street slowly and with care, instead of being directed to skip the Seventy-sixth street station ? These are questions which naturally and properly suggest themselves. But they are entirely unanswered

Upon the testimony of these men the claim is made that every possible agency was brought to bear to prevent the accident, and that the train failed to respond to the brakes and the sand solely because of the down grade and the extraordinary condition of the tracks. It appeared, however, that the down grade stopped between Seventy-ninth and Seventy-eighth streets, and that from a point about twenty-five feet north of Seventy-eighth street down to the Seventy-sixth street station, and somewhat beyond it, was entirely level. Considering this fact and also the great force with which the colliding train was driven into the standing ear, the jury were justified in doubting the entire accuracy of the testimony given by these engineers, and in attributing the collision to the rate of speed at which the train was run, to the neglect of the engineers to observe the train standing in front of them sooner than they did, and to their failure to apply the brakes in due season. The great momentum attending the collision and the fact that the engineers had been ordered to pass the Seventy-sixth street station without stopping, certainly give color to these considerations. When, in addition, we find that the engineers are not quite in harmony as to the rate of speed, and are contradicted by one of the plaintiff’s witnesses (Jacobs), who says that, notwithstanding the blinding and unparalleled storm, the train did not go slow, but “ at the same rate it always goes, the same as they go down every grade,” it is impossible to say that there was absolutely no question for the jury. The schedule time was twelve miles an hour, which is probably what Mr. Jacobs meant by “the same rate it always goes.” One of the engineers (Rhein) says they passed down the grade at not more

There were still other circumstances which might properly be considered by the jury. We need not go over them all. Suffice it to say that upon the whole we think the learned judge was right in denying the motion for a direction and in submitting the question to the jury. It was so submitted in a careful charge, the exceptions to which are not pressed further than by a general protest against the theory that the admission and amendment made at the opening of the trial shifted the burden of proof. But there can be no doubt that the defendant did assume this burden, and that the charge was entirely correct in the view taken of this admission and amendment. The statement in the charge, that the burden was on the defendant to show “that the collision could not have been avoided,” should be read in connection with what precedes and what follows. It is apparent that the learned judge conveyed no such idea to the jury as that the defendant was liable as an insurer. Tie qualified the expression above quoted by the reference to “ human care, skill and foresight,” which follows it. What preceded accentuates his meaning and renders it quite clear that the jury could not have misunderstood what he sought to convey. At one time he speaks as follows: “ You, therefore, see that the burden of proof has been shifted, and it is now upon the defendant, the railroad company, to satisfy you by a fair preponderance of evidence, that the contention that they make that this was not due to any act or neglect or omission or failure to perform the legal duty imposed upon them, that it was from no fault on their part or their servants that this injury resulted.”

This is again emphasized by the observation: “ I do not mean that you are to determine that question as to whether it could not

The remaining question relates to the admission of evidence. The defendant contends that it was error to permit the physicians who examined and treated the plaintiff to state the symptoms of which he complained when they were examining him with a view to diagnosis and treatment. . It has always been the rule to admit testimony of this character. (Greenl. on Ev., § 102; Phi. on Ev. [5th Am. ed.], vol. 1, pp. 147-150; Matteson v. New York Central R. R. Company, 35 N. Y., 491 , 492.)

The patient’s “ complaints and representations of pain and suffering,” as was said in the last case cited, “ together with his appearance and conduct, necessarily formed the basis ” of the physician’s judgment. The rule to which the appellant refers, and which we think it misapplies, relates to similar statements — not in their nature mere exclamations of pain — made to non-professional witnesses. Such declarations have been finally excluded in this State. (Roche v. Brooklyn City and Newtown R. R. Company, 105 N. Y., 295 .) In the latter case, however, a reservation is distinctly ■suggested with regard to statements made to a physician for the purpose of professional attendance.

The only serious question as to the admission of evidence is whether the physicians should have been permitted, without a hypothetical question, to state that the injuries received by the plaintiff were sufficient to produce the conditions which they discovered. The accident occurred, as we haye seen, on the twelfth of March. Prior to that time the plaintiff was a strong and healthy man. After the accident he suffered more or less for a week or two, when he went to his family physician, who) after an examination, decided that a specialist was required. Thereupon lie consulted Dr. Lesser. This was in the early part of April. Dr. Lesser testified that he found the plaintiff suffering from spinal cerebral meningitis, with •continuation of changes along the spinal marrow or spinal cord. lie was then asked to state the cause of such meningitis. This was

“ Q. The plaintiff in this case claims to have been thrown down in a car of the elevated railroad, on his back. Did you hear his. statement of the manner in which he was thrown down? A. Yes,, sir; I heard that.”

Thereupon the court put the following question :

“ Q. Were those injuries, received in the way in which he has. stated, sufficient to produce the results and conditions you discovered on your examination.”

Counsel for defendant objected to the question on the ground stated to the question put by Mr. Shaffer to the witness. The court overruled the objection and counsel for the defendant duly excepted.

“ A. It was quite sufficient to produce that injury; to produce meningitis. It was quite sufficient to produce Mr. Connelly’s difficulty.”

The question put by Mr. Shaffer to the witness was that which we have above-mentioned as to the cause of the meningitis.

While it would, undoubtedly, have been better to frame a. hypothetical question, we think it was not error, under the peculiar-facts of this case, to permit the question as formulated by the learned judge. The witness, it is true, stated that he had heard a portion of the testimony, but that portion, as appeared from the subsequent, answer, covered all that the plaintiff had testified to as to the manner in which he was thrown down. Now, there really was nothing-more in the plaintiff’s testimony on that head than the bare statement that owing to the shock of the collision he was thrown down upon his back. He remembered, and all he did remember was, that he had an umbrella in his hand when he fell; that that umbrella was found under his back after the fall and was then broken in the center; and that when he fell he struck something, but could not tell what. This was the entire story of the fall. It was neither disputed nor modified. No different version of the affair was given

Indeed, the reference in the question to his testimony was almost superfluous in view of the prefatory statement as to the plaintiff’s claims. It was equivalent to asking him “ Did you hear the plaintiff’s statément that he was thrown down, in a ear on the elevated railroad, on liis back % ” That was the substance of it, with the single addition of his having struck “ something.” It would be sacrificing substance to form to hold that such a question, under such circumstances, permitted the witness to usurp the functions of the jury, or to give conclusions based upon his own view of the facts. The simplicity of the single fact testified to by the plaintiff, and the impossibility of viewing such fact in any but one way, save the question from the condemnation of such cases as Page v. The Mayor (32 N. Y. State Rep., 563), and warrant us in sustaining the judgment, the case being otherwise free from error.

The question put to one of the physicians — “ In your opinion, is the disease from which the plaintiff is suffering likely to be temporary or permanent ? ”— was clearly objectionable and the ruling favorable to the question erroneous. The error, however, was not prejudicial, as the answer excluded any doubt, uncertainty or mere, likelihood. The physician declared that the disease was a permanent and progressive one and mevitahly fatal; that he based his opinion on a large experience in the same kind of cases, and from the fact that when the spinal cord is once diseased it can never recover itself.

The questions put to the non-professional witnesses were unobjectionable. They only called for the plaintiff’s appearance, movements, manner of walking, etc. This has always been allowed. The questions put to these witnesses being proper, the plaintiff is not responsible for an inadmissible remark made by one of them, such as that “ He looks to me like a physical wreck.” That was not called, for by the question and was improperly volunteered.

Upon the whole, we see no reason for disturbing the verdict, and the judgment and order apjiealed from should, therefore, be affirmed, with costs.

Judgment reversed and new trial ’ordered.