McKenna v. Brooklyn Heights Railroad, 58 N.Y.S. 462

McKenna v. Brooklyn Heights Railroad

58 N.Y.S. 462 | N.Y. App. Div. | 1899

Cullen, J.:

The action is for personal injuries. It is only necessary for us to notice an exception to the charge which we think is fatal to the judgment recovered. The plaintiff was thrown out of a vehicle in which he was riding by a collision between the vehicle and one of the defendant’s cars. After the accident he remained confined in his house for two weeks, when he had a stroke of apoplexy, which was followed by paralysis. The apoplexy and paralysis he contended proceeded from the injury received at the time of the collision. While there was proof that physicians attended him for the conditions stated and that he required the personal services of an attendant, there was no proof as to the amount of the expenditures made by the plaintiff for such services, nor was there any proof of what amount he would be required to pay on that account in the future. The learned trial court, at the request of plaintiff’s coun*256sel, charged the jury that, if they found that the plaintiff was entitled to recover anything, “ you are entitled to give him what will be his. reasonable expenses incident to his condition in the future.” To this charge the defendant excepted, stating that there was no proof of what those expenses would be. The portion of the charge excepted to seems to come exactly within the condemnation of Staal v. The Grand Street & Newtown R. R. Co. (107 N. Y. 625), and Page v. Delaware & Hudson Canal Co. (34 App. Div. 618). In the first case it was proved that the plaintiff wás a painter, but it was not shown what were his wages at the time of his injury. I charged the jury that the plaintiff could not recover past loss of wages because that was a matter susceptible of proof. But, being .of opinion that the future rate of wages of a painter could, at best, be only a matter of speculation, to be determined by the common knowledge and judgment of men, and not established by evidence of the then present rate of wages, I charged that the jury might allow the plaintiff for his pecuniary loss “ on account of the injury caused by the diminution in his ability to earn a livelihood.” This instruction was condemned by the Court of Appeals as erroneous because the plaintiff had not proved the rate of wages at the time. I cannot see that the present case is to be distinguished from the one cited. If “ reasonable expenses incident to his condition in the future” included expenses for medical attendance, there was no proof what those services would probably be nor what would be their cost. If, as contended by the respondent, these expenses were only the services of a personal attendant or nurse required on account of the paralyzed condition, there was equally an absence of proof of what the wages of such an attendant or nurse was or would be.

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

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.