Johnson v. City of Troy

108 N.Y.S. 917 | N.Y. App. Div. | 1908

Chester, J.:

The plaintiff has had a verdict in his favor in an action for personal injury. In his complaint it is alleged that while he was riding in an ice wagon drawn by two horses upon Seventh aVenue, in Troy, the pavement suddenly gave way, and he, together with his horses and wagon,, was precipitated into a ditch or depression, “ thereby hurting, bruising, wounding and injuring this plaintiff in his back, head and side, causing him to be made sick, sore and lame, and be permanently disabled.” The plaintiff under this allegation was permitted to prove, against the defendant’s objection, that it was not within the allegations of the complaint that from four to six weeks after the accident he went to a hospital and had an operation: performed on him for appendicitis. The defendant excepted.

In Lockwood v. Troy City Railway Co. (92 App. Div. 112) it was held under.an allegation that the plaintiff had, by being thrown from his wagon, received injuries to his hip and his back, and had been'thereby made sick, gore, lame and disabled, that he .could not prove that he was suffering from kidney disease .as a result of the accident, it not ajjpearing that such disease was necessarily, and ' directly caused by the injury to the plaintiff’s back.

In Gumb v. Twenty-third St. R. Co. (114 N. Y. 411) it was said : “ When a plaintiff alleges that his person has been injured and proves the allegation the law implies damages, and he may recover such as' necessarily and immediately flow from the injury (which are called general damages) under a general allegation that damages were sustained ; but if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury (which are called special damages) lie must allege the special damages which he seeks to recover.” '

In Kleiner v. Third Avenue Railroad Co. (162 N. Y. 198) it was held that an allegation that plaintiff had sustained a- severe nervous shock was insufficient to justify her in proving that the result of the shock was to produce heart disease, vertigo, curvature of the spine and other diseases, it not appearing that such consequences' necessarily and immediately resulted from the shock, as the rule is that special damages must be specially alleged, and the reception of evidence of such resultant injuries, properly excepted to, is reversible error.

We think the case presented for our determination is brought squarely within these authorities. While the plaintiff’s counsel assured the court when the evidence objected to was received that he would connect it, and while it was shown that the plaintiff received an injury to his groin or the right side of his abdomen and that 'there was a contusion and inflammation there, which the physician who attended and operated upon him testified he was reasonably certain was due to the accident, there was a complete failure of proof to show that the appendicitis for which the plaintiff was operated upon was necessarily and directly caused by the injuries which the plaintiff received. x

In order to justify the recovery of damages for a condition that did not necessarily and directly result from the injury received,' such damages should have been specially pleaded in order that the defendant might have notice thereof and an opportunity to properly litigate the question on the trial. (Kleiner Case, supra.)

We think for these reasons there must be a new trial.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event."