79 N.Y.S. 1035 | N.Y. App. Div. | 1903
Lead Opinion
This action was brought to recover damages sustained by the plaintiff while riding in a vehicle of the electric company. It was disclosed by the evidence that the plaintiff and two other women were being carried down Eighth avenue, and at about the intersection of Thirty-Eighth street the vehicle and a beer truck collided, the effect of which was to throw the plaintiff violently against the dashboard of the vehicle, from which she suffered injuries. The testimony upon the part of the plaintiff’s witnesses tended to show that the person in control of the vehicle turned out to pass the beer truck, and, as the hind wheel of the vehicle came opposite the front -wheel of the beer truck, the driver of the truck suddenly turned, causing the front wheel of the truck to come in contact with the rear wheel of the vehicle, throwing it around, and causing it to come in contact with a trolley car going north. The vehicle and the beer truck were both proceeding south.
When the plaintiff rested, she had undoubtedly established a case against the defendant Meyer, who owned the beer truck, which called for its submission to the jury upon the question of negligence and damages. There was no claim of contributory negligence by the plaintiff in the case. As to- the vehicle company, it is quite difficult to see any basis upon which liability against it could be founded, and its evidence still further tended to establish a case exonerating it. After the case of the plaintiff and the vehicle company was in, the defendant Meyer, upon its part, proceeded to show that the beer truck was being driven in a lawful manner along the street; that it had turned out to pass a van backed up against the curb, which was necessary in order to obtain a passage around the van; that; as it turned out, the vehicle, going at a high rate of speed, ran into the wheel of the beer truck, and that its act in so doing resulted in the accident. When the witnesses for the defendant Meyer had finished their testimony, a case was presented upon which the jury might exonerate him from liability, and one was made sufficiently strong to carry it to the jury as to the negligence of the vehicle company. It is well-settled that the liability of wrongdoers is both joint and several, and in an action predicated upon negligence, where two- or more persons are jointly sued, and
Upon the evidence in the case, however, there is great difficulty in spelling out wherein, taking the whole proof together, it was established that there were concurrent acts of negligence of the two defendants producing the injury. The proof given is inconsistent with such relation. If the story of the plaintiff and the witnesses for the vehicle company be true, then it follows that it was guilty of no negligence, either in the discharge of any duty which it owed to the plaintiff or otherwise. If the testimony upon the part of the defendant Meyer is to be believed, then the driver of the truck was guilty of no negligence, as it tended to establish that he was acting in a lawful manner, infringed upon no other person’s rights, and that the accident was solely due to the negligence of the vehicle company in colliding with the truck. Under these circumstances it is difficult to see how it can be said that the injury was the result of the concurrent acts of these two defendants. It therefore became the duty of the court, in submitting the case to the jury, to charge that the plaintiff was entitled to recover against the
The only other question in the case which requires attention relates-to the admissibility of the evidence bearing upon the injury to plaintiff's eyes. It is clear that this testimony was not competent for the-purpose of establishing injury to- the eye as a source of damage, as it is not pleaded. The objection raises such question. The answer, however, to this claim is that it was not offered for the purpose of showing injury to the eye. as a basis for a claim for damages, but it was received solely for the reason that it was a manifestation of the injuries which she received, which were properly pleaded, and upon which the plaintiff was "entitled to recover. The court carefully guarded and limited this proof to the purpose for which it was offered. It is no objection to evidence, which is offered for the purpose of establishing an injury which is properly pleaded, to- show wherein and how such injury manifests itself, and what are its legitimate effects. The-evidence in the present case warranted the conclusion that the injury which was sustained, as averred in the complaint, as one of its results, affected the eyes of the plaintiff. We think, therefore, that the evidence was competent for such purpose. It is evident, in view of the moderate character of the verdict, that the jury were not prejudiced against the defendants by any of the rulings which were made upon the trial, including the one to which attention has been called-
No reversible error is presented in the case. The judgment and order should therefore be affirmed, with costs.
VAN BRUNT, P. J., and PATTERSON and EAUGHEIN, JJ„ concur.
Dissenting Opinion
I dissent from- the affirmance of this judgment. It is conceded in the prevailing opinion that when the plaintiff rested she had established a case against the defendant Meyer which called for its submission to the jury upon the question of negligence and damages, but as to the vehicle company there was no evidence to justify the submission of the case against it to the jury. It is also clear from the whole evidence that there was no- justification for a finding of concurrent negligence of these defendants which caused the injury. If the evidence offered on behalf of the plaintiff and the vehicle com-