Looram v. Third Avenue Railroad — 57 N.Y. Super. Ct. 165

Majority

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ANN LOORAM, as Administratrix, etc., Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Appellant.

Headnote

Negligence, death caused by.—Action to recover damages, etc.—Practice as to stating exceptions.

The first objection of the appellant is, that there was no proof that the death was caused by the injury received through the negligence alleged. The immediate cause of the death was peritonitis. Plaintiff's medical wit

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nesses testified that peritonitis may be caused in seven different ways, and there was no proof but that several of these causes existed in the case that could not be attributed to defendant’s case, but there was proof, however, that a certain cause actually existed which the jury might competently find ensued from the negligence.

Held, that the rule to be applied in such a case is that, there being a sufficient, cause shown, causes that were not made to appear did not exist.

Held, also, that it is irregular to make an exception by inserting in the case that ‘‘defendant excepts to foregoing italicized portion of the charge.” An exception must be taken at the trial, and at that time the charge is not in print, and no part of it can be italicized. This exception can be entertained only by supposing that on the trial there was an exception to a part of the charge represented by the italics in the printed case, and then proceeding to consider the supposed exception.

Before Sedgwick, Ch. J., and Freedman, J.

Decided June 28, 1889.

Appeal by defendant from judgment entered on verdict for plaintiff, and from order denying defendant’s motion for new trial made upon the minutes.

Hoadly Lauterbach & Johnson, attorneys, and William N. Cohen, of counsel, for appellant.

Daniel P. Mahoney, attorney, and W. Bourke Cock-van, of counsel, for respondent.

The action was for damages, suffered by the next of kin of plaintiff’s intestate, from the death of intestate, caused by the alleged negligence of servants of defendant.

The first objection of the appellant is, that there was no proof that the death was caused by the injury received through defendant’s negligence as alleged.

The immediate cause of death was peritonitis. The argument for appellant is, that plaintiff’s medical witnesses testified that peritonitis may be caused in seven different ways, and there was no proof but

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that several of these causes, which could not have been attributed to defendant’s negligence, existed in the case. There was proof, however, that a certain cause, which the jury might competently find ensued from defendant’s negligence, actually existed. The rule to be applied, there being a sufficient cause shown, is that causes which were not made to appear did not exist. There was no deficiency of proof in this respect.

There was no legal objection to the questions asked of the witness Dr. McCreery.

The court refused to allow a question asked of a medical witness, which was, what can you say, with reasonable certainty, were the probabilities of Looram’s life or living with that condition that you found? While this question was properly excluded, as it only referred to the probability of Looram’s living at all with his kidneys in the diseased state proven, the court subsequently allowed an examination on the subject intended, by proper questions asked by the defendant’s counsel to as great an extent as he wished.

In his charge, the court remarked, that a certain witness had testified to a certain thing, adding “if I remember correctly.” The counsel did not correct the court by turning its attention to the fact that another witness had testified to the matter and not the witness named by the court, but excepted to that part of the charge. The court had previously told the jury that they and not the court were to determine what testimony had been given. The exception is without substance.

The charge of the court, as made, was without error, and sufficiently comprised all the matters, to which the defendant’s requests referred, which should have been charged. In my opinion it is irregular to make an exception by inserting in the case that “ defendant excepts to foregoing italicized portion

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of the charge.” An exception must be taken at the trial, and at that time the charge is not in print and no part of it can be italicized. The exception can be entertained only by supposing that on the trial there was an exception to a part of the charge represented by the italics in the printed case, and then proceeding to consider the supposed exception. .

The verdict cannot be disturbed as excessive in its assessment of damages.

Judgment and order affirmed with costs.

Freedman, J., concurred.