44 N.Y.S. 244 | N.Y. App. Div. | 1897
Lead Opinion
The questions to be determined in this case arise out of certain exceptions taken by the plaintiff to the charge of the trial judge.
In our opinion the court below did not err in instructing the jury that if Mrs. Forgie fell in the “Shields” lot and not in Fifteenth street the plaintiff could not recover under the complaint. The negligence charged against the defendant in the pleading was in permitting an excavation to remain in Fifteenth street, without guards or a light, into which the deceased fell and sustained the injury which caused her death. Negligence in not erecting a guard or barrier between the line of the street and the excavation in the “ Shields ” lot, into which Mrs. Forgie perhaps fell, was not alleged or claimed. The court, therefore, properly held that for an act of negligence not stated in the complaint the plaintiff could not recover. It did not instruct the jury that for such an act of negligence, had it been charged in the complaint, the plaintiff could not have recovered under the doctrine established in Jewhurst v. City of Syracuse (108 N. Y. 303). As the negligence of the defendant, if any, in failing to erect a barrier between the street and the excavation in the adjoining lot, was not alleged in the complaint as a ground for a recovery, neither did the plaintiff, when his attention was called to that fact by the charge of. the court, ask for an amendment of the pleading in order that a recovery might be had for the failure of the defendant to erect such barrier.
The court, on the question raised on the trial as to whether the land and premises called “ 15th street ” -was in fact a public highway, was asked by defendant’s counsel to charge as follows: “ In order to set in operation the provision of the charter which you read to the jury it must appear that at the time the lands and premises were thrown out for a street they were in the shape and for the purposes of streets, and used as such for five years continu ously,” and did instruct the jury as thus requested. The learned
The trial judge, in .one portion of his charge to the jury, used the following language : “ Nor would you be authorized, in this case, I charge you, to find that the injury was the result of this accident, if you come to the conclusion, from all the evidence you have before you, that if it had been properly treated death would not have resulted. If you come to the conclusion, from all the evidence before you, that if she had been treated with ordinary care and skill promptly after the accident, death would not have resulted, then I charge you that the plaintiff is not entitled to recover in this action. If you come to the conclusion that 'she was neglected, and that by reason of that neglect a situation intervened which resulted in the taking away of her life, then I charge you that for such result the plaintiff cannot recover in this action.”
If the deceased, acting in good faith and with proper diligence after her injury, employed a physician who made a mistake and treated her improperly, or neglected her, the jury were thus instructed that she could not recover.
The authorities do not sustain the instruction thus given to the jury by the trial court. They establish the doctrine that a party injured by the negligence of another is bound to use ordinary care to effect his restoration and cure; but that he is not responsible for a mistake ; and, acting in good faith under the directions of a physician, the mistake of the latter in the treatment will not shield the wrongdoer. (Lyons v. Erie R. Co., 57 N. Y. 489; Sauter v. N. Y. C. & H. R. R. R. Co., 66 id. 50.)
Under the authorities cited, that portion of the charge of the trial judge-above quoted cannot be sustained. The deceased, after the injury by the negligence of the defendant, was bound in good faith to take reasonable care of herself. If she did so, although the physician or physicians who attended her did not use proper treatment, or neglected her, in consequence of which the injury caused by defendant’s negligence terminated fatally, the plaintiff was entitled to recover.
It is suggested by the respondent that the evidence given on the trial failed to show that the plaintiff had sustained any pecuniary damages on account of the alleged negligence of the defendant, or to establish the fact of the absence of contributory negligence on the part of the deceased; and, hence, that the defendant was entitled to a judgment of nonsuit on the trial, and as the defendant was thus, on undisputed facts, entitled to a judgment, a new trial should not be granted, although the trial judge may have erred in the portion of the charge above adverted to.
As there is no certificate that the case contains all the evidence, and as it purports merely to include the testimony and proceedings had upon the trial as far as the same is necessary to present the plaintiff’s exceptions taken in the course of the trial and to the charge of the court to the jury, we are unable to determine whether or not the trial court erred in submitting to the jury the questions as to whether the plaintiff had sustained any pecuniary injury in consequence of the negligence of the defendant, or the question as to the contributory negligence of the deceased.
For the reason above suggested the judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Pabkee, P. J., not sitting.
Concurrence Opinion
I concur upon the last ground stated in the opinion. I doubt whether the trial judge was right as to the two propositions first discussed.
Judgment and order reversed and a new trial granted, costs to abide the event.