Long v. Fulton Contracting Co.

117 N.Y.S. 1118 | N.Y. App. Div. | 1909

Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was for negligence, and a verdict was rendered for plaintiff for $6,000. EV question is made on this appeal as to plaintiff’s right to recover.

The only controversy is as to the admission of evidence as to plaintiff’s injuries, upon which the amount of damages was determined by the jury.

The court admitted, under defendant’s objections and exceptions, evidence that the injuries resulted in epilepsy, paralysis and mental impairment. This, the defendant claimed, was improper, under the complaint and a bill of particulars served by the plaintiff.

The complaint made the following allegations as to the injuries, viz.: “ Causing the boom and bolt which held the clamp upon said boom to strike the plaintiff in the left side of the head, also striking him on the left hip and ankle, knocking him down upon the ground, and knocking him senseless, and inflicting a very deep and severe injury in his head and fracturing his skull, and severely injuring his left leg and ankle, by reason of which he suffered and underwent great pain in his head, left hip, leg and ankle; that he was so severely injured that he was unable to help himself; that he was removed in such condition to the City Hospital of Fulton, where he underwent an operation for the injuries received in his head, and was also treated for the injuries received in his left hip, leg and ankle; that he remained in said hospital under the treatment of the. hospital authorities for a. period of five weeks; that from the time of sutíh injury, up to and including, the time of such operation and during all of the time he was at said hospital for said period, he suffered and underwent great .pain in his head, also in his left hip, leg and ankle, by reason of the injuries hereinabove alleged and set forth, and during all of said period was under the doctor’s and nurse’s care, and was compelled to employ medical attendance and assistance, and. incurred great expense for medical treatment and nursing; that he is still suffering great pain in Ins head and left ankle,-and compelled to wear a rubber bandage upon said left ankle, by reason of which said left ankle is very weak; that he is still under the doctor’s care and incurring great expense by reason of' such injury; that ever since said injury was received he has been very nervous and restless, having suffered pain in his head and left ankle and being deprived of his sleep, and unable to sleep by reason of the injuries .and pain hereinabove stated, and is still suffering great pain in his head and left ankle by reason thereof.' Plaintiff further alleges, upon information and belief, that the injuries herein above stated and set forth and received * ■ * * by the plaintiff herein in his head arid left ankle are permanent and from which injuries he will never recover.”

In the bill of particulars the injuries were described as follows : ££ Causing the boom and bolt which held the clamp on sáid boom to strike the plaintiff on the top of the head, a little to the left of the center and toward the forehead (said bolt being about five-eighths of an inch in diameter with a nut upon one. end, and being about two and oné-half to three inches in length), causing the bolt to go down through and into plaintiff’s head between two and one-lialf to three inches until the nut upon said bolt and the skull came in contact, a-nd'also crushing the skull and penetrating through the hair, skull,.bone, brain and flesh, downward toward the left jaw, thereby lacerating the brain and skull and necessitating the removal of the brain below the skull to the depth of between two and one-half to three inches, and removing the hair and skull, leaving a depression in the head about two to two and pne-half inches long and one-quarter to a half inch in width, which injury knocked the plaintiff down upon the ground and rendered him senseless; that said injury so inflicted, above described, was a permanent injury and from which plaintiff will never recover ; that from the time of said injury and during the operation, which was performed shortly after the injury, and ever since, the plaintiff has suffered great pain in his head, especially where this injury was received, and has suffered great loss of sleep and weakness of body, rendering him unable to do any manual labor. That said boom also struck the plaintiff on the left hip, leg and' ankle, and especially upon the left ankle, causing severe pain and weakness of the ankle, compelling the plaintiff to wear a rubber bandage upon it, which plaintiff has been compelled to wear ever since said injury and now wears ; that said ankle is very weak 9ud unable to sustain plaintiff’s weight, and plaintiff suffers great pain from the same, and is unable to use the same or to bear any weight upon the same to any extent; that said injury so inflicted upon said ankle above described is a permanent injury, and from which plaintiff will never recover, as he is informed and believes.” The accident occurred March 21,1908. The complaint was made June 8, 1908. The bill of particulars was made September 25, 1908, and the trial took place January 18-20, 1909. There were certainly' words enough used in these papers in describing the injuries and their effect upon the plaintiff, and yet through the whole there was not an intimation of epilepsy, paralysis or mental impairment. Even if it were not regarded as necessary to specify these conditions in the complaint, it would seem they should have been in some way referred to and indicated in the bill of particulars. The only object of calling for such bill was to ascertain what particulars were claimed, so that the defendant might be.prepared to meet the proofs on the trial as to the nature and extent of the injuries. If these conditions were present, why did plaintiff conceal them and fail to specify them in his complaint and bill of particulars ? Even at the trial evidence of these conditions was held back and only offered at a late stage of the examination of the physicians. The real question involved, however, is whether the evidence when given was competent under the allegations of the complaint and the statements in the bill of particulars. All these conditions are claimed to have resulted from the injury to the head. The evidence at most tends to show that these' conditions did' in- this instance, result from the injury to the head. It does not, however, show that they would always necessarily and immediately result from such an injury. The rule, as I understand it, is that if a recovery is sought for consequences which do not necessarily and immediately - flow, from the. injury, the damages .'therefor are known as special and cannot be recovered unless alleged in the complaint or specified in a bill of particulars, and the burden of showing that the injuries, for which damages aré. claimed are- the necessary and immediate consequence of the injury received is upon the plaintiff. A great many cases are cited and discussed by the respective counsel and it would not be well to go over them in this opinion. ' It would occupy too- much space. A few references will be sufficient to show the correctness of the rules above stated.

In Kleiner v. Third Avenue R. R. Co. (162 N. Y. 193) this principle is laid down, and the following .cases are cited and discussed : Ehrgott v. Mayor, etc., of City of N. Y. (96 N. Y. 264, 277); Uransky v. D. D., E. B. & B. R. R. Co. (118 id. 304); Gumb v. Twenty-third St. R. Co. (114 id. 411).

The JElwgoÚ case is limited and explained in the Kleiner case, and we need not discuss it here.

In Johnson v. City of Troy (124 App. Div. 29), a late case in the Appelate, Division, .the-.same principle, is stated and applied and several cases referred to .and considered;

As I understand the proof here'it does not appear that tl.ro conditions here involved epilepsy,paralysis, or mental impairment must necessarily and immediately follow injuries such as are specified in the complaint and bill of particulars. They may sometimes do so, but not always, and, therefore, if they did result in this caso, they should, have been specially alleged and stated or else they could not be proved and damages recovered therefor.

The court' erroneously allowed such, proof and recovery on the . trial, and,-therefore, there must be a reversal and a new triah

All concurred.

Judgment and Order reversed and' new trial ordered, With costs to appellant to abide event.