Carples v. New York & Harlem Railroad

| N.Y. App. Div. | Jul 1, 1897

Van Brunt, P. J. :

This action .was brought to recover damages for personal injuries .sustained by the plaintiff through the negligence of the defendant in being thrown from one of the defendant’s cars while attempting, to enter as á passenger thereon.

Upon the trial of the case the plaintiff attempted to prove his ■damages up to the time of the trial. This evidence was excluded .and an exception taken. We think this was error. While the plaintiff, perhaps, had not made such allegations in his complaint as would justify him in claiming damages for permanent injuries, he certainly had the right to prove such injuries as he had sustained up to the time of the trial. It is a principle too familiar to need • the citation of authority that in all actions for damages those which have been sustained up to the time of the trial may be recovered, ■except those which may be special in their nature, in which case an ■allegation of special damage in the complaint is necessary. In the case -at bar the evidence offered was of the ordinary character which naturally pertains to in juries of the description sustained by the plaintiff; and he was entitled to receive compensation therefor if he made out his cause of action.

The plaintiff also attempted to prove loss of earnings during a ■certain period as a result of the ip jury. It seems to us that the ■allegations contained in the complaint were ample to support proof ■of this description. The plaintiff alleged that he was compelled to remain away from his business for about six weeks, and was •deprived of the use of his foot and otherwise injured. He was, therefore, entitled to show what his loss of earnings was because of his absence from business, such absence being one of the natural •and necessary results of the injury.

There are other exceptions to the exclusion of evidence which ■also seem to he well taken, but which it is not necessary to consider particularly here.

The answer which the respondent makes to the plaintiff’s appeal is that upon the evidence the complaint should have been dismissed and the plaintiff was not entitled to any recovery whatever. It seems to us that that question cannot be considered here, as the defendant’s exceptions to the rulings of .the court are not properly before us, and for the purposes of this appeal it must be assumed that there was a right of recovery in some amount. The questions which are presented upon this appeal- might have been raised by a bill of exceptions which contained none of the evidence, and consequently it would be impossible to determine the question which is sought to be brought to our attention by the counsel for the respondent. As above s.tated, the respondent’s exceptions not being properly before the court, we cannot consider the proposition that the court erred in its ruling in not dismissing the complaint.

■ The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide- the event.

Barrett, Rumsey and O’Brien, JJ., concurred; Ingraham, J., concurred in result, :

Judgment reversed, new trial ordered, costs to, appellant to abide event.