66 N.Y.S. 321 | N.Y. App. Div. | 1900
Lead Opinion
This action grows out of a collision between one of the cars of the defendant and a wagon in which the plaintiff was driving, which resulted in the destruction of the horse and wagon, and inflicted personal injuries of considerable severity upon the plaintiff. A clear ■case was made out for submitting the question of the defendant’s negligence and plaintiff’s freedom from contributory negligence to the jury; and there would be no difficulty in sustaining the judgment upon the merits were it not that the record discloses several erroneous rulings which appear to have been prejudicial to the defendant and which probably had the effect of materially increasing the amount of the recovery. •
The complaint in this suit mentions the killing of the horse and the demolition of the plaintiff’s wagon; but it contains no allegation
We are of the opinion that this evidence was not admissible under the complaint. -There was no allegation that the plaintiff had suffered any loss.by reason of the destruction of the horse and wagon, nor did the complaint demand that any damages should be awarded on that account. Indeed, the bringing of the second action by the same attorney indicated that the pleader did not intend to include in this suit any claim' for such damages. In the absence of an
The jury rendered a general verdict of $12,500 in favor of the plaintiff, and made a special finding fixing the value of the horse and wagon at $1,250. The effect of the errors already discussed might be obviated by deducting from the amount of the verdict the $1,250 representing the value of the horse and wagon, if it did not appear that another erroneous ruling in the case probably had the effect of enhancing the sum awarded as compensation for the plaintiff’s personal injuries.
This ruling related to the plaintiff’s ability to draw fancy pictures. His occupation was that of a manufacturer of carriages. “ My busi- ■ ness is carriage manufacturer,” he said. “ I have been in business in the Borough of Brooklyn, formerly the City of Brooklyn, as a carriage manufacturer for about twenty years. I have a trade; I am a draftsman and painter and all connected with the business. * * I made drafts of carriages and I worked at the bench, used the saw and plane, and all those tools connected with a mechanical business.” His testimony tended to show that he had lost the use of the fingers of his right hand in consequence of the accident, so that he could no
' The judgment should be reversed and a new trial granted, costs to abide the event.
All concurred, except Woodward, J., who read for affirmance.
Dissenting Opinion
This is an action for negligence resulting in injuries to the person and property of the,plaintiff. On appeal it is conceded that the evidence of negligence on the part of the defendant was sufficient to take the case to the jury, and there seems to be no reason to question the propriety of submitting to the jury the question of the lack of contributory negligence on the part of the plaintiff, a condition of facts appearing from the evidence which would, justify a finding that the plaintiff had established his freedom from contributory negligence.
The complaint, aside from the formal averments, alleges that “heretofore and on the 30th day of June, 1899, while the plaintiff was lawfully driving upon Quincy street and crossing Franklin avenue in said Borough of Brooklyn, one of the cars of the defendant running at an unlawful ,:rate of speed unlawfully and wrongfully and negligently ran into plaintiff with such force and violence that his horse was killed, his wagon demolished and that he was violently thrown from said wagon to the street and dragged for a considerable distance, whereby he was cut, bruised, wounded and injured about the head, body and limbs, his right knee was injured, he sustained a serious injury to his head, his back was badly wrenched, and he sustained a severe nervous shock to his whole system,” and “ that by reason of the aforesaid, plaintiff has been and will be compelled to suffer great pain, and has been and will be compelled to spend money for medicine and medical attendance, and has been and will be prevented from attending to his usual vocation, and has been as he verily believes permanently injured and that he will never fully recover from the effects of the same, in all to his damage in the sum of twenty-five thousand dollars.” It is doubtful, except for the subsequent act of the plaintiff in bringing a separate action for damages for the loss of the horse and wagon, if any one would have questioned the sufficiency of ‘this complaint as a demand for all of the damages growing out of the one wrongful act of the defendant. It states concisely the elements of the plaintiff’s damages, and fixes a sum which covers alloLhis damages. The trial court was not in error in refusing the motion to amend the complaint, and in holding that the .pleadings were broad enough to admit of evidence of the value of tile horse and wagon destroyed.
The point urged by the appellant’s counsel, however, seemed to
A motion to withdraw a juror is addressed to the discretion of the court (2 Rumsey Pr. 288, and authorities there cited), and the circumstances of this case do not warrant the conclusion that the court erred in the use of its discretionary powers in denying the motion, nor has the defendant any reason to complain of the remarks of the court called out in the course of a discussion of defendant’s objections to the amendment of the complaint. If the plaintiff had a cause of action against the defendant, he had a right to all of the damages sustained in the accident complained of. The effort of the defendant to make use of the present action as a bar to a subsequent suit, and then to prevent the plaintiff recovering in the case at bar through ■ technical object tions to the complaint, or on the pretext of surprise, is contrary to the spirit of the' jurisprudence of- this State. Section 723 of the Code of Civil Procedure not only gives the court power to amend the complaint, but where “ the amendment does not change substantially the claim or defense ” it • may conform the pleading or other proceeding to the facts proved, and “ in every stage of the action, the court must disregard an error or defect, in the pleadings, or other proceedings, which does not affect the substantial rights of the adverse party.” . It was necessary either that the defendant .waive the bar to the subsequent action, or that the plaintiff be allowed to submit the whole controversy to the jury, and we conclude that the trial court did not err in the course pursued upon the trial in denying defendant’s motion to withdraw a juror. The plaintiff’s complaint stated a cause of action in which all of the elements of damage were noted, and demanded judgment for all of such damages in the sum of $25,000, and proof of those damages • was properly admitted.
The plaintiff is a draftsman, as he testified, and we see no objection to the introduction of drawings of his own as evidence of his skill, where it was shown that he was rendered incapable of doing this
The judgment appealed from should be affirmed, with costs.
Judgment and order reversed and new trial granted, costs to abide the event.