141 N.Y.S. 104 | N.Y. App. Div. | 1913
Lewis Middleton, plaintiff’s intestate, fifty-one years of age, a forwarding agent and truckman, was in business at 29 Spruce street, and lived in an apartment house at the corner of Broadway and One Hundred and Fortieth street. He was of florid complexion, five feet nine and three-quarter inches in height, about 220 pounds in weight, and his general appearance as to health was good. On May 24,1910, he left his- office about one o’clock, lunched with a friend on a few sandwiches and a cup of coffee, and left him about half-past one, saying he was going to the ball game. The telephone operator in the apartment house where he resided saw him going out of the house between half - past two and three o’clock. He spoke to her and seemed in good health. The conductor of a pay-as-you-enter car of' the Third Avenue Railroad Company which ran up Amsterdam avenue, calculating from the time the car left Sixty-fifth street, said that he reached One Hundred and Fortieth street about two-forty or two forty-five. He did not see decedent get on the car, but first observed him about One Hundred and Eighty-fifth street and Amsterdam avenue getting up from his seat on the right-hand side about three seats from the front and change to the left-hand side. At the end of the road at Fort George the seats have to be turned for the return trip. The conductor tapped him on the shoulder and told him it was the . end of the road. He said, “All right, all right,” and started to vomit. The cornductor reported to the starter that he had a drunk and could not get him off. The starter told him “ to let him sleep it off and carry him down; that he would be all right at the end of the trip. ” He took him down town from One Hundred and Ninety-second street to the post office. He observed him vomiting once in a while and adjusting his spectacles. At the post office he asked him for his fare, and he made a search of his pockets, when a gentleman who got on said: “ I have been often in the same boat myself, I have often had a jag on myself; here is the fare. Let him go and he will be all right.” This conductor
This action is to recover of the defendant damages for said death. It is conceded that the defendant is in no way responsible for the cerebral hemorrhage or stroke of apoplexy. There was no collision, no accident, no assault. It happened while Mr. Middleton was on the car, not because he Was there, or on account "of anything which occurred while there. The action
First. While it is shocking to think that a man stricken with apoplexy should be carried around the city for five hours in an open street car, the question is: Does it follow that the defendant is responsible in money damages ? It is established that so far as external appearances are concerned,' it is difficult to differentiate between intoxication and apoplexy. Even medical men and hospital' officials make mistakes. In answer to the question, “ Is it not difficult often to diagnose alcoholism and apoplexy ?” Dr. Mosher answered, “It is difficult sometimes. Q. And isn’t it a fact that the mistake is frequently made by hospital doctors or ambulance surgeons ? A, * * * It is a mistake that is made. Q. And made by physicians ? A. Yes.” And Dr. Touart testified: “Sometimes a mistake in diagnosis is made by physicians in diagnosing the difference between drunkenness and a stroke of apoplexy. * * * Sometimes physicians diagnose apoplexy as drunkenness. Q. How, if at three o’clock in the afternoon you had a glance, a look at a man who was not unconscious, who was vomiting, whose color was normal, florid, not pale, who when spoken to said, ‘All right, all right,’ those facts would not indicate to' even a physician that that man was suffering from a stroke of apoplexy, would they ? A. Ho, they would not, * * * I agree with that statement of Church Peterson in diagnosing apoplexy when he says, ‘ Every case must be carefully analyzed, and often then only a presumptive diagnosis can be finally reached. The diagnosis of a case of apoplexy is sometimes an extremely difficult one for physicians.’ If a physician observed a man on a car at the end of the route and he asked him for his fare, the
Was it negligence then for the two motormen, two conductors, two starters and an inspector to conclude that the man. was under the influence of li.quor and not to. discover that he had a stroke of apoplexy ? It must be taken into consideration also that a policeman and two passengers came to the same conclusion and that no passenger during all those five hours made any suggestion to the employees that the man was sick rather than as he appeared. The treatment by these employees of this unfortunate passenger instead of being susceptible to the charge of gross brutality and inhumanity, seems to have been actuated by a kindly and sympathetic feeling. Instead of being thrown off the car, he was allowed to remain where he had put himself, with the notion that it was the best thing for him, that he would sleep it off and that he had better be in the open air. ■
The respondent cites a number of cases with excerpts from opinions. ' None of them present a similar state of facts to that at bar. In Sheridan v. Brooklyn & Newton R. R. Co. (36 N. Y. 39) the conductor had compelled a boy to get up and give his seat to another passenger and to stand out on the crowded front platform, from which he was thrown. In Wells v. New York Central & H. R. R. R. Co. (25 App. Div. 365) the gateman at'defendant’s station knew the passenger, knew the train he wished to go on and had promised to notify him when it arrived, knew that he had been taken suddenly ill and was unable to care for himself, and, having forgotten to notify him of the arrival of the train, directed a policeman to .eject him from the station, and he, while wandering among the tracks, was run over by another train. In Regner v. Glens Falls, etc., R. R. Co. (74 Hun, 202) the conductor forcibly ejected an assumed intoxicated person from the car, who was really suffering from St. Vitus’ dance. Dwinelle v. New York Central & H. R. R. R. Co. (120 N. Y. 117) was the case of an assault upon a passenger by a Pullman car. porter, who
We think that actionable negligence was not made out.
Second. Respondent claims that, while the defendant was not responsible for the original stroke, that was slight and if the patient had been promptly put to bed and received medical treatment, his life might have been prolonged. There was no autopsy, so the location and extent of the rupture is not known. In answer to hypothetical questions, the physicians expressed their opinion that the original rupture was slight. But the questions omitted the facts as to his previous physical condition. He had arteriosclerosis, a systolic murmur in the aortic area, albumen and granular casts. Dr. Mosher testified: “I discovered that he had arteriosclerosis and that his arteries were thickened. That they might have developed some years previous. That is a predisposing cause to a .stroke of apoplexy.
Dr. Touart testified: • “ He did have an arteriosclerosis of the blood vessels. Ordinarily it takes some years for that condition to develop and get in the condition that it was in this instance,in Mr. Middleton’s body. I should say he probably had arteriosclerosis of the blood vessels extending over some years.” ■ ( ' • '. . '
Dr. Neff testified that the stage was prepared in the case of Mr. Middleton for a stroke of apoplexy. “ Such a break, when the stage is prepared, may occur while the patient is lying at rest in: bed. It might occur while he was lying at rest in a hospital surrounded by skilled medical men * * *. In certain forms of hemorrhage there; is no assured treatment that will save: his life. Q. In a hemorrhage where it occurs ’ slight at first, and you give him the treatment of rest, there is no assured treatment that will save his life, is there, Under the best medical attention ?■ A. Only probable.. It is not assured. * * * Q. But where the stage is prepared, and you know it, the conditions, are such as we have; stated, the hemorrhage comes, there is no medical skill that call surely save him is there % A. No, not surely. * [ * *• From a rupture in- this artery, where I claim' it occurred, with it in a diseased condition, at home lying in.bed, if he was rushed to-the hospital instantly, I cannot state, as a fact that skilled medical men could save him. I could .not surely save him. :Q. Well, then, if he was on a car and rushed instantly to the; hospital, with a rupture,
All of the evidence was given by witnesses for the plaintiff. Upon the hypothetical question propounded by plaintiff the doctors ventured the opinion that the original lesion was slight, and they gave the guess that if he had been promptly attended to his life might have been saved of prolonged for a time. But just when the employees ought to have discovered his condition, and just when he should have been removed to a hospital, and how long it would have taken, and how much jolting he would have received in that transfer, is to the last degree speculative and uncertain. The next day he was moved from one hospital to another, a distance of two' miles. Who can say what effect that transfer had ?
Respondent puts much reliance upon McCahill v. New York Transportation Co. (135 App. Div. 325). But in that case there was an original tort. The victim had been run down and his thigh broken, and the defendant was responsible for the accident,' and hence for its results. This court said: “Upon all the evidence, I think it was a question for the jury whether the injury caused by the negligence of the defendant did not produce the delirium tremens which,. in the opinion of the doctors, was the immediate cause of death. If the decedent but for the injury might have lived for many, years and the injury, plus his condition when he received it, caused the delirium tremens of Which he died, I think the case comes within the meaning of section 1902 of the Code of Civil Procedure which gives a cause of action to recover damages for a wrongful act, neglect or default by which the decedent’s death was caused.” And in the Court of Appeals (201 N. Y. 221) Judge Hiscock, in answering the question whether the appellant’s negligence was, legally speaking, the proximate cause of the intestate’s death, said: “In determining this question it will be unnecessary to quote definitions of proximate cause which might be useful in testing an obscure, involved or apparently distant relationship between an act and its alleged results, for the relationship here is perfectly simple and obvious. The appellant’s automobile struck
It does not seem that the responsibility for this death has been traced to the defendant with that degree of certainty which the law requires. It was not responsible for the cerebral hemorrhage. It is really but guess, work to say thát prompt attention would have saved the life. Defendant’s liability as the proximate cause of death is not satisfactorily established.' Therefore, on both grounds, plaintiff failed to make out a cause of action.
The judgment and order appealed from should be reversed and the complainjt dismissed, with costs;
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment reversed and complaint dismissed, with costs. Order to be settled on notice.