60 N.Y.S. 732 | N.Y. App. Div. | 1899
The plaintiff, while attempting to cross Third avenue in the, city of New York with a horse and wagon, came, in collision with a car of the defendant’s road coming down the avenue, and received serious injuries, to recover for which he brought this action. At the trial he had a verdict. A motion for a new trial was denied, and after the entry of the judgment on the verdict this appeal was brought by the defendant, both from the judgment and the order denying a new trial.
It is claimed by the defendant that upon the evidence the plaintiff was clearly guilty of contributory negligence. Just before the accident, plaintiff was proceeding up Third avenue on the east side of the street; he was seated on a furniture wagon,, which was about twenty-five feet long. When he reached a point between Eightieth and Eighty-first streets he attempted to cross the avenue to a place on the other side, where he had some business, and ás he was crossing the. avenue a cable car, coming from the north, collided with the wagon.
The jury might have found from the evidence, although on this point the testimony was conflicting, that when the plaintiff attempted to cross the street he was proceeding at a slow trot; that at that time the cable car was north of the uptown crossing of Eighty-flfst street, and was coming south at the full speed of 'the cable, They
The evidence shows that, although the car continued at its original speed, the plaintiff was yet able to get so nearly across the track that the approaching car only struck the tailboard of his wagon, so that if the speed of the car had been slackened he would have succeeded in crossing without a collision. The jury might have found, •also, that the plaintiff had reason to believe when lie started to ci'oss the street that he would be able to do so without colliding with the car. In view of all these facts, and of what is now established to be the reciprocal duty of a driver of a car toward one attempting to cross a street (Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30; Lawson v. Met. St. R. Co., 40 id. 307), there can be no doubt that the plaintiff was not guilty of contributory negligence as a matter of law, and that the jury were justified in concluding .as a fact, not only that the plaintiff was not guilty of contributory negligence, but that the defendant failed in its duty towards him and was guilty of negligence.
We have examined the defendant’s exceptions taken to the rulings on the testimony, and are satisfied that there are no errors in them.
Great stress is laid to the charge of the learned trial justice on the question of damages. The facts were that as a result of the •collision the plaintiff suffered a rupture in the groin, which caused him, as the jury have found, considerable inconvenience and no little pain, and was at the time of the trial growing worse. It is quite evident that the damages which wére given by the jury were based in a very considerable amount upon this rupture. The evidence of surgeons was given, not only as to the existence of the rupture as the result of this accident, but also as to the probability of its cure, if the plaintiff would submit to a surgical operation,. The defendant’s expert testified that such an operation would almost certainly result in a cure, but the physicians sworn on behalf of the plaintiff, while admitting that such an operation would probably result in a cure, said that it was by no means certain.
On that branch of the case the learned trial justice charged the jury : “ Something has-been said to you-regarding the possibility of the plaintiff having had a radical cure effected by submitting himself to a surgical operation; I charge you upon that subject that a person who has been injured by an accident of this kind is bound to pse.the usual and reasonable remedies which are appropriate to-alleviate or cure such an accident as he has suffered. He is not permitted to increase and enhance the damages which- he has suffered by negligently or carelessly or willfully permitting his condition to get worse than it would be if properly .treated. At the same time, no man is bound for the purpose of reducing the amount of damages which he may be entitled to recover from a person who ¡has done him a wrong, no man is bound to submit himself to a surgical operation which may even in the remotest degree he an operation attended with danger. That is a matter which he must determine? for himself, and if he, through apprehension, or for any other cause, has determined that he will not submit himself to such an operation, the defendant is not entitled to take advantage of his failure to do so. At the same time, you are to take into, consideration, determining the amount of injury which this man has suffered -and the permanency of his injury, all the testimony that you have heard from'the experts upon the subject of the possibility of curing £V disease of this kind by a surgical operation, and the slight inpon» venienee which is said to result from such operation in most cases.”
To this charge as an entirety an exception was taken. Counsel for the defendant insists that the charge, was erroneous, but he .made no request to the court to modify it, or to charge more fully upon any proposition contained in it, so that if the propositions chaigbd are correct defendant cannot complain that-the court should hav©
The question in every case is whether the plaintiff has used such means as were at hand to reduce his damages as a reasonably prudent man would have used. It cannot be said as a matter of law that he is bound to use any particular means, or to do any particular thing (unless that thing is one which would necessarily result in reducing the damage, and which a reasonable and prudent man would use). If, in any given case, it appears that the particular means which may be used to effect a cure would or might cause greater injury, or produce serious results, quite clearly the injured person would not be called upon, as a matter of law, to take the chances of suffering more serious injury or death, for the purpose of reducing thé damage.
While the person who inflicts the damage has the right to say that sure and safe means to diminish .the evil results of the accident, if any such exist, must be used, yet that is the extent of his right. Whether further means should be resorted to is for the plaintiff to determine. In making that determination, the plaintiff has the right to consider the nature of. the means used to effect a cure, and the possible or probable effect upon himself. He has to determine for himself whether he is to resort to those means in view of those considerations. In any given case, it maybe that the treatment which is given to the plaintiff is not the best that could be devised, but the plaintiff is not the less entitled to his damages on that account if, in taking that treatment, he has consulted such a physician as a reasonably prudent man would consult.
The jury, in getting at the damages, are to say not only what they are, but whether the means used by the plaintiff to reduce the damages were such as an ordinarily prudent man would use. They cannot say that he should or should not have taken the advice of any particular physician, nor that he should have obtained any par
That is what was substantially said to them by the learned trial justice. The law lays down no hard and fast rule as to the duty of the plaintiff under such circumstances. Whether an operation for his ailment, which might endanger his life in any degree, must be submitted to, is a question which the law cannot answer, nor does iit lie in the mouth of a jury to say that the plaintiff should or should not do any particular thing. They are concerned simply with the affairs presented to them at the trial, and whether the damages then appearing to exist are the natural and probable result of the injuries diminished by the efforts for a cúre which a reasonably prudent man would have made. This is substantially what was said by the learned trial justice, and with this statement of the law we are content;
If the jury concluded, as they might, that the serious injuries which the plaintiff received were the natural and probable result of this injury tested by these rules, they were quite justified in giving him a verdict for the amount which they did, and the damages were not excessive.
The judgment and order must, therefore, be affirmed, with costs.
Van Brunt, P. J., Barrett, Ingraham and McLaughlin, JJ., concurred.
Judgment and order affirmed, with costs.