Haddad v. Public Service Railway Co.

| N.J. | Oct 7, 1925

Per Curiam.

The female plaintiff, while alighting from a trolley car of the defendant company, was thrown to the ground by the alleged negligent starting of the car. The suit was brought by herself and husband to recover compensation for the injuries to her and for the expenses incurred by him; as well as compensation for'the loss of her society. The jury awarded the wife $2,500 and the husband $500. The liability of the defendant company was admitted at the trial.

We are asked to set aside these verdicts upon the ground that they are excessive because of the fact that they were based to some extent upon illegal testimony given by a medical expert, one Dr. Willis, who was called by the plaintiff. Tt is asserted by counsel that although this illegal testimony was stricken ont it was subsequently referred to by the court in the charge to the jury as a matter to he considered in fixing the damages. The basis of this contention is contrary to the fact. Dr. Willis, having testified that his examination disclosed that the woman was suffering from retroversion of the uterus expressed the opinion that this condition was probably due to the accident. Upon motion of defendant’s counsel this expression of opinion was struck out. The doctor further testified that in order to restore the woman to her former health she would have to undergo an operation. At the close of the case the court, in dealing with the question of damages, used the following language in the charge to the jury: “There is testimony tending to show that in order to cure herself of the ills which she alleges she suffers as a result of the accident it will lie necessary for her to undergo an operation, and if that be true, of course, she would he entitled to a reasonable compensation for any pain or suffering- which she would ho obliged to undergo by virtue of that operation, and, further, if that operation was necessary, and was undergone, the husband would be entitled to compensation for that expense.” This instruction, which is the subject of counsel’s criticism, is not based at all upon the expression of opinion by the physician as to the probable cause of the woman’s condition, but upon the testimony which she had afterwards given, which was admitted without objection, and the competency of which is not challenged.

The only other ground for making this rule absolute which has been argued before us is that the evidence did not .justify the jury in concluding that the woman’s condition, that is, the retroversion of the uterus, was due to the accident. There was evidence supporting this finding a.nd we cannot say that the proofs to the contrary were of such a character as to justify us in setting aside the verdict on the ground that it was contrary to the weight of the evidence in this respect.

The rule to show cause will be discharged.