Eisenberg v. City of New York

285 A.D. 831 | N.Y. App. Div. | 1955

In this action to recover damages for the wrongful death of plaintiff’s intestate and for conscious pain and suffering, the trial court dismissed the cause for wrongful death at the close of plaintiff's ease on the ground that no causal connection between the intestate's injury and death had been established; and the jury returned a verdict of $1,000 in plaintiff’s favor upon the cause for conscious pain and suffering. The appeal is by plaintiff from the ensuing judgment. Judgment reversed on the law and the facts and new trial granted, with costs to abide the event. It was reversible error for the trial court to strike out the testimony of the intestate’s attending physician that the intestate’s pre-existent condition of diabetes had been under control prior to the accident and that the injury which she sustained in the accident aggravated and complicated that condition so that it became uncontrollable; and to refuse to permit him to testify as to whether the injury had an effect upon the diabetic condition, and what the treatment for that condition was after the accident. Had the witness been permitted to state the effect which the injury had upon the diabetic condition, a proper foundation might have been established for proof of causal relationship between the injury and the death. In the interests of justice there should be a new trial. Nolan, P. J., Wenzel, Schmidt, Beldock and Murphy, JJ., concur.