111 A.D. 339 | N.Y. App. Div. | 1906
Lead Opinion
The complaint lacks precision, but in its bungling way (which we have to overlook in pleadings nowadays) it alleges that the .plaintiff was struck in the abdomen and bruised, blackened and injured there, and internally. The plaintiff described the severe pains she suffered in the abdomen from the time of the accident and eruptions like blisters that came out on her abdomen. These latter were objected to as not pleaded. Enough was pleaded to cover all pains, discolorations, swellings and eruptions or blisters of the abdomen. That the doctors gave such eruptions and blisters a scientific name and said they were caused by the abdominal pain did not make proof of
The judgment should be affirmed.
Woodward and Jenks, JJ., concurred; Hooker, J., read for reversal, with whom Hirschberg, P. J., concurred.
Dissenting Opinion
(dissenting):
The plaintiff has a verdict in this, action for personal injuries, and the defendant, to support its appeal, urges that error was committed by the trial court in allowing proof' of inflammations and eruptions on the plaintiff’s abdomen, becaus^ they were not pleaded. The allegation in the complaint is that the plaintiff was struck violently in the abdomen by" the turnstile maintained by the défendant, “ bruising her and- leaving her in a dazed condition from the pain; that her person was severely bruised and blackened on the outer part of. the abdomen by the injury, and she was injured internally, so that, by reason thereof she was for several weeks confined to her bed and rendered. helpless, suffering, great pain; that she received a severe nervous shock to her nervous system; that she suffered and still suffers great pain by reason of said injury, and will suffer in the-future; that her general health has been impaired and a serious, internal injury to her intestines' has been caused thereby, and which will in all probability prove permanent.” The' plaintiffs’ medical experts testified that the inflammation and eruptions.* were diagnosed "as dermatitis herpetiformis ; that this disease was produced by .the plaintiff’s' long-continued nerve-racking pain, and that the long-continued nerve-racking pain Was the result of -the injuries to her abdomen sustained by contact with the arm of the' turnstile. The dermatitis herpetiformis did not develop until some. eight months-after the accident, during most of which time she- had, as a result of her primary injury, suffered intense pain almost continuously. It is evident, therefore, that the skin trouble was.not'an .immediate and' natural consequence of the injuries.. Proof of the condition should' not have.been allowed,'in the absence of. special averment of such damagé. (Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193; Sealey v. Met. St. R. Co., 78 App. Div. 530.) The complaint alleged the injury to the abdomen; it alleged her helpless condition,
The judgment and order should, therefore, be reversed and a new trial granted.
Judgment and order affirmed, with costs.