64 N.Y.S. 996 | N.Y. App. Div. | 1900
The defendant admitted liability for negligence, and the jury rendered a verdict for $3,500. The defendant insists that the ver- ■ diet is excessive, contrary to the weight of evidence and that there are harmful errors in the rulings of the court. Its contention over the amount of the verdict is based upon an alleged exaggeration of the injuries. The plaintiff, a man about sixty-five years of age, was a passenger in defendant’s car when a.collision occurred. He testified that thereupon he fell or was thrown from his seat upon his left side • that he immediately felt pain in his spine, in his back and side; that the jpain is continuous; that about a month thereafter he developed hernia; that he suffers from ins'omnia; that his left leg is partly paralyzed and that he is unable to work. There is testimony that the hernia and paralysis are permanent. He stated that previous to the accident, throughout life, he had been .free from ills, so that he had never been kept an hour indoors or from his business. ' Several witnesses state that before the accident the plaintiff was stout, hale and sprightly, but after it he became slow, stooping and broken down. If the jury believed that this suffering, disease, change and incapacity were caused by the accident, I think the amount of the verdict. does not warrant the assumption that it represents aught but the jury’s judgment of compensation. The plaintiff’s physicians say that, besides his hernia and paralysis, he suffers the impairments of heart, lungs, liver and blood vessels incident to old age, and the learned counsel argues therefrom that this old man would naturally be injured more than a younger man. Granting this, the argument has, alone, no force against the amount of these damages, unless $3,500 is the highest-sum that the courts will recognize as legal compensation for such injuries when suffered by a man in his prime. Otherwise the jury might have awarded a larger sum to this plaintiff had he been forty, and free from the blight of time.
It is also contended that it is not shown that the accident was the cause of the injuries. It is said that there is no evidence that the collision “ was heavy,” in that no panes of glass in the car were broken, and others of the passengers were uninjured. But several passengers testify that upon collision there was a “smash,” “a severe shock,” “ a bang ” and “a bang again,” and that they or others were thrown down or cast across the car.
It is also insisted that the court érred in admitting any evidence of injury to the spine. The plaintiff complained that he was .hurt and injured “in his leg and body, and internally, and suffered, and still suffers, severe and intense pain,- and became, and still is, sick and lame * * * that in particular, the plaintiff, as a conse-
quence of the said injuries, is afflicted with a severe case of hernia, and is badly injured in the leg,” etc. The learned counsel for the defendant calls our attention to the testimony of the attending physician, taken under objection, that he had treated other cases of affection of the spine, and states in his printed points “ If the evidence as to the injury to the spine had been confined and limited as only being proved for the purpose of showing that it was the cause of. the paralysis in the. leg, defendant’s objection might not have been well taken, but throughout the case the jury were allowed to take into consideration as an independent element of damage the pain and injury to the spine.” In my opinion, the references of counsel to the record do not establish his projDosition, but rather the premise of his concession, namely, that any evidence of injury to the spine Avas only proved “for the purpose of showing that it was the cause of the paralysis in the leg.” We are first referred to the testimony of a physician who was describing his examination of the plaintiff.: “ He (the plaintiff) began to quiver, and the more I directed him to put his knees outward the more this quivering increased; that is a symptom of lack of spinal force. That is the mildest term I can give it, lacli of reflex power in the leg. The common term used in medicine for that within the last twelve years has been known as railroad spine.” I read in this testimony a diagnosis of the disease of the leg as due to a lack of spinal force, and I think it was admissible in explanation of the disease and as accounting for the cause thereof. The second citation refers to a question as to the experience of a physician in cases of
It is urged that the court erred in admitting evidence of the medical expenses. The plaintiff complained that he “ was put, and will still be put, to much expense in the treatment of his said injuries.” The reference is plain enough, and the statement was probably sufficient to afford notice to the defendant of the claim. (Frobisher v. Fifth Avenue Trans. Co., 81 Hun, 544; affd., 151 N. Y. 431; Popp v. N. Y. C. & H. R. R. R. Co., 26 N. Y. St. Repr. 639; Cleveland v. New Jersey Steamboat Co., 25 id. 666.) If the allegation was too general, .the defendant, on motion, could have had it made more specific. (Frobisher v. Fifth Avenue Trans. Co., supra.) The learned court stated that it. had permitted an amendment, and the record sustains' the court, inasmuch’ as counsel for plaintiff, in effect, made application therefor early .in the trial, when he asked -permission to prove such item of damage. If the
The counsel for plaintiff put this question to Dr. Lesser, a physician called-by the plaintiff: “ How, then, I want you to go on and state what was said by the patient in response to your questions ? ”, Defendant’s counsel said : “ Let him be confined to what he found. We cannot be bound by what this patient said. This gentleman is put on as an expert.”' The objection was overruled and defendant excepted. The witness answered : “ He said from a certain day that he suffered intense pain in his back ; a feeling as if he could not move his limbs as he desired to, and a certain coldness in his limbs. He also complained of pain in his right side, above, that is, in the groin, and in the left side below the groin ; that is, anteriorly, the forepart of the body. At the same time the pain was more extensive on the left side of his back, he claimed, than it was on the right.” It is evident that this statement is not a narration of past suffering not then existing, but of the then subjective symptoms of the plaintiff, and is, therefore, not objectionable as hearsay. I think that the téstiinony fairly establishes that the relation of the plaintiff and Dr. Lesser at the time of this examination was that of patient and physician. Dr. Lesser had been called in consultation by the permission of the attending physician and had seen the patient four or five times. He was informed of the treatment and of the prescriptions. He gave his opinion on the treatment in .the past, and not only advised but ordered the treatment of xthe future. He advised a surgical operation. He did not take the patient out of the hands of the attending physician, but such is not the function-of the consulting physician, as implied in the very term. I am of opinion that, as this particular testimony of the physician related to the statements of the present condition, pain and suffering of the patient, made to his physician with a view of treatment, it is, therefore, admissible under the rule laid down in Davidson v. Cornell (132 N. Y. 228). Counsel for the defendant cites the record to establish the fact that Dr; Lesser was. an expert in that he stated that he expected compensation .at a fixed rate per diem. Conceding
The exception to a hypothetical question Under the objection thereto, “ so far as it implies or assumes that this plaintiff got any blow in the spine,” did not exactly state the terms of the question, which were “ a blow near-the spine and to the left of the spine in the lumbar region.” The plaintiff had testified that after the accident he had suffered pain immediately in the spine here, “in my hack here (indicating),” and the physician testified that he had found concussion in the lumbar region.
. The judgment and order should be affirmed. ■
Judgment and order unanimously affirmed, with costs.