64 Barb. 299 | N.Y. Sup. Ct. | 1865
notwithstanding the great number of causes which have been before the court in which the plaintiffs charged railroad companies, and other carriers with negligence, whereby damages were sustained by such plaintiffs, but little progress has been made in settling principles of law, or rules of evidence, applicable to such cases. The reason probably is, that the carrying interest of the country has become so important, and the amount for which any single accident may render them liable is generally so large, that policy as well as economy demand that every principle affecting their rights should not be deemed to be settled until after the most thorough investigation and discussion.
In the case before us, I think it will be found that nearly all the questions argued by the defendant’s counsel have been repeatedly before the courts, and must, as to this court, be taken as res judicata. I do not mean to cast any reflections on the conduct of the defendant’s counsel for again discussing these questions. It is his right to argue them, and it is our duty, as it is our pleasure, to “hear him. I will not attempt to examine all the questions presented by his points, as the examination of a few of the most important ones will enable us to establish principles which will dispose of the rest.
The first exception relied upon by the counsel is, to the permission by the court to the plaintiff to answer the following question: “Did the state of your health
It appeared on the trial that after the injury the plaintiff continued in the employ of the Messrs. Remington, and that they had increased his wages, at his request, ten dollars per month. This fact did not indicate a decreased capacity for labor, but on the contrary, it was almost conclusive, not only of his capacity, but that the plaintiff relied upon it as a ground on which to demand such increase. It is true the constantly increasing cost of living may be a sufficient basis for higher wages, and it was for the plaintiff to satisfy the jury, if he could, that such increase was the result of causes other than a
The plaintiff’s claim for damages rested, in part, upon the theory that the injury had caused partial paralysis of certain functions of the body, and that such paralysis would not only be permanent, but might terminate in the destruction of the whole nervous system. Whether paralysis had already begun, was a question, not of skill merely, but of fact—fact known to the plaintiff only, unless the disease had extended far enough to affect his limbs, speech or intellect. Whether the nerves connected with the sexual organs were paralyzed, was a question of skill applied to the fact that they were affected, which could be known to the plaintiff only. He alone could say whether the desire for sexual intercourse remained, and the physician could answer whether the loss of it would result from the injury of the spine, and whether the injury received was of a nature to affect the spine. If absence of desire for sexual intercourse would result from the paralysis of nerves emanating from the spinal cord, and the injury was such as to affect the spine, then the absence of such desire became evidence from which the jury might, in connection with other facts proved, infer the paralysis of a part of the nervous system, at least. Without this evi dence, a fact most material to the formation of a correct medical opinion, would have been, and one which, if believed by the jury, must have been, of great assistance in guiding them to a conclusion as to the effect of the injury on the plaintiff. . The evidence was properly received.
The defendant’s counsel insists that the physicians who were examined on the trial, were permitted to go beyond the limits within which experts are permitted to express opinions, and gave opinions that were merely hypothet
Several questions were permitted to be put to the same physician, as to the time within which a recovery from the effect of the injuries would be most likely to begin; whether he would be likely to recover; what the result would be if not cured; and whether the disease of the spine, from which the plaintiff was suffering, was curable. These questions were all objected to as calling for merely speculative opinions. I do not think the objection is well founded. An important element of the claim for damages was, that the injuries were incurable; that there was to be no improvementin the future. This must rest upon opinion wholly. One way of ascertaining whether the plaintiff would get well, would be to ascertain when—if a cure would ever occur—it would begin. If in the experience of a physician, a cure of the spinal column from an injury would commence within six months from the injury, or if not, that the chances of a cure became almost hopeless, it would furnish very strong ground on which to rest the inference, in this case, that the plaintiff’s injuries were incurable, they having happened more than six months before the examination. Whether the plaintiff would ever recover, was an issue tried before the jury. It could be proved only as matter of opinion, and whether such an opinion, is speculative or hypothetical, I have no doubt of its competency, It is no more speculative than that which, on trials for murder, is almost uniformly given, whether the wound was such as to produce death. It is sometimes difficult to determine when opinion founded on skill ends, and mere speculative opinion begins; but I am quite clear that in the class of questions under consideration, the region of speculation was not reached.
The plaintiff was allowed to ask the same witness
Dr. Morris testified that the uncertainty of movement was a symptom of paralysis, and the court permitted the plaintiff’s counsel to inquire what capacity or incapacity does tliis indicate. The question is not very clearly stated, but was intended, doubtless, to call for the answer which it received, and that was as to the degree of physical and mental power the plaintiff possessed in his partially paralyzed condition. Thus treating it, it was clearly competent. In no other way could the jury be enabled to estimate properly the actual present condition of the plaintiff; and this fact it was competent to prove, because it was necessary for the jury to find.
Exception is taken to that part of the charge in which the judge informs the jury that the defendant had it in its power to examine the actual condition of the plaintiff, and if he refused to permit an examination, the defendant might prove it on the trial. ISTo such proof was given, and it is impossible, in the absence of a full report of the proceedings on the trial, to ascertain the reason why the judge made the statement to which exception is taken. As an abstract proposition, I do not doubt but that a party sued for injury to person or property, which is exclusively under the control Of the party suing, has the right to an examination of it, in order to frame his defence in such action. It would be most unjust to permit a plaintiff to recover damages for injuries, the extent and nature of which he kept concealed, and would not permit the person charged with the injury, or his witnesses, to examine. This question can only arise when evidence of such a request and refusal is offered. But it may be proper for a judge, in his charge, to make this
It was for the jury to say whether the accident was caused by reason of defects in the ties. On this subject there was evidence on both sides. It may be that if we had sat on the jury we would have come to a different conclusion from that arrived at by the jury; but that is not enough; the finding must be either without evidence, or so decidedly against the weight of evidence, that it must have been brought about by either partiality, corruption or gross ignorance. (Heritage v. Hall, 33 Barb. 347. Cohen v. Dupont, 1 Sandf. 260.)
It has been said. in several cases that a new trial will be granted when it appears that injustice has been done; but this is so uncertain a rule by which to test the right to a new trial, that it has not been followed; and if any rule is to be established, the one .which I have stated is the only one which will give to parties the full benefit of a trial by jury. If this mode of trial is to be followed, the people must take it with all its faults, and the courts ought not to interfere with the action of a jury farther than-to see that they have not abused the trust reposed in them. The verdict is not so decidedly against the weight of evidence as to authorize us to set it aside on that ground.
The plaintiff does not, in Ms complaint, specify the
I have given my views upon all the points raised by the counsel for the appellant,, which seem to be of sufficient importance to require examination, and I" have been unable to agree with the learned counsel that any error has been committed on the trial, which calls for a new trial. It may be that more has been recovered than compensation for the injury done to the plaintiff caEed for. On that subject it is not our province to express an opinion; but if it is too large, it is not so excessive as to justify the imputation of either passion or prejudice.
I am of opinion, therefore, that the judgment should be affirmed.
Morgan, J., dissented.
Judgment affirmed.