8 N.Y.S. 525 | N.Y. Sup. Ct. | 1890
This action was brought to recover damages for personal injuries sustained' by the plaintiff in consequence of the defendant’s negligence in allowing a coal hole on one of its ferry-boats to be left open, into which the plaintiff fell, injuring himself severely. For the purpose of disposing of this appeal it is not necessary to give a detailed statement of facts and circumstances disclosed by the evidence relating thereto. It is sufficient to say that the questions of negligence and contributory negligence were made the subject of evidence and discussion, and were properly submitted to the jury for their determination by the justice presiding at the trial. The obstacles to the maintenance of the judgment, considered without reference to others urged, are two exceptions to the admission of evidence which seem to have been improperly received. It appeared upon the trial that the nature of the injury which the plaintiff received by the fall described was the subject of conflicting evidence in reference to which experts entertaining different opinions were examined. It appeared also upon the trial that the plaintiff had received an injury, in the year 1883, affecting-his left knee, which was the injured part, and the question arising thereupon in connection with the accident which formed the subject of this action was whether the latter caused the displacement of the cartilage in the plaintiff’s left knee, or whether it was due to the first accident, namely, that which occurred in 1883. Upon that subject Dr. Lesser, an expert, was called on behalf of the plaintiff, and the following questions were asked, answers given, objections made,. and exceptions taken: “ Direct Examination by Mr. Fromme. I heard the testimony of Dr. Abbe. Question. Have you heard all the medical men testify here on this trial, giving a description of the nature of the disease with which Gregory was afflicted, and the other witnesses as well? Answer. I have listened to everything that has occurred in this ease while-being here; I mean, while this case was on in court, from Monday until now. Q. From the testimony that you liave heard, what do you say was the trouble, or with what was Gregory afflicted, before June 9, 1884? (Objected to as incompetent, and irrelevant, and improper, and not proper in form; objection overruled; defendant excepts.) A. I don’t know whether you refer to the evidence given by the physicians only.' Q. By all of them, up to June 9, 1884. A. I have no positive cause to believe that such a thing as subluxation of the semi-lunar cartilage had existed preceding the accident of June 9th. Q. In view of all the evidence that was given here at the trial, what was Mr. Gregory suffering from
There is a further exception which is presented in this way: “The plaintiff’s witness Lesser was then asked: Question. What is the probable result of such an injury? Answer. The possible result? Q. I will amend my question by saying, what is the possible result? A. The possible result is— Mr. Shaffer. I will confine it to the probable result.” The witness was then allowed to state as follows: “That this cartilage can never adhere again to the bone, and that a dislocation may take place from time to time unless well secured,—that is, well bandaged; and, even if so, either a slight turn or twist of the leg can dislocate it again. Furthermore, inasmuch as it does not recei-ve its natural supply of nutrition, we may have degeneration taking place in the cartilage so that it cannot perform its function. From that, if the bone exists without the cartilage and anchylosis, or rather stiffening of the entire leg, the upper and lower portion of it not being secured, we may have an inflammation of the upper portion of the bone upon which this cartilage is attached and resulting in caries-necrosis, which, of course, may eventually, if operations are not successful, terminate in requiring the leg to be amputated.” This was objected to as incompetent, irrelevant, and immaterial. The objection was overruled, and an exception taken. The exception seems to be sustained by the case of Strohm v. Railroad Co., supra. The rule is there stated to be that to entitle the plaintiff to recover present damages for apprehended future consequences there must be such a probability of their occurring as amounts to a reasonable certainty that they will result from the injury. In that case Dr. Spitzka, who had personally examined the plaintiff, was asked what were the symptoms related to him and described in a hypothetical question indicated, to which he answered. And subsequently, being asked as to the permanency of the condition of the plaintiff, said it was “very likely” to be permanent. The further question was then put to him: “What do you mean by ‘ very likely?’” He answered: “I mean that the boy will always have some remnants of this injury,—some reminder of it, great or small. That is certain. How much he will retain I cannot tell, but I think it very
The counsel for the defendant presents another serious objection to the charge of the learned judge, in which, in effect, he suggested to the jury a capitalization of the plaintiif’s earnings, and to give him a sum which would not only be equal to what they had been in previous years, but would be sufficient to support him from year to year. The question presented by this objection was considered and decided in the case of Railroad Co. v. Burke, 9 Amer. & Eng. R. Cas. 869. In that case the court instructed the jury that they might ascertain the value of the plaintiif’s services to himself before the injury and the value of his services since, ascertain the difference, and then give such a sum as would at legal interest produce a sum equal per annum to that difference; and this was held to be error. The court said: “Resulting from the application of that rule, appellant would not only be required to pay the annual difference between the value of appellee’s services before and since the injury, but, in addition, a gross sum sufficient to produce that difference at the legal rate of interest. ” The learned justice in the case at bar, when exception was taken to these suggestions to the jury, said that they were given to them as an illustration. But it is very clear that it was misleading, and the learned counsel for the defendant excepted to the illustration particularly. It seems to be impossible, with these exceptions thus sustained by well adjudicated cases, to uphold this judgment. This result renders it unnecessary to examine other exceptions which have been taken, some of which seem to be equally formidable as those already considered. .For these reasons the judgment should be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.