192 A.D. 172 | N.Y. App. Div. | 1920
This is a statutory action (Code Civ. Proc. § 1902 et seq.) to recover for the death of Lewis Middleton alleged to have been caused by the negligence of the defendant in continuing to carry him on a car on which he was a passenger after it was apparent to defendant’s employees in charge of the car or would have been apparent to them if they had exercised reasonable care and caution that he was seriously ill and in need of medical treatment,
On the new trial the evidence presented is substantially the same as on the former trial with the exception that the plaintiff presented further evidence showing that the conductors and motormen employed by the defendant were instructed to make a verbal report to the first inspector starter or official with whom they came.in contact on their route with respect to any accident, mishap or blockade of any kind, and in case a passenger became sick or helpless upon a car, the conductors were instructed to call the first policeman or inspector, and that if no policeman or inspector was at hand, to use their own judgment, and were instructed to call a policeman when there was an accident or when a passenger was sick or drunk and they wanted to get rid of him to avoid trouble, and that if a passenger became sick or helpless it was the duty of the conductors to call the nearest policeman and to have the passenger taken off. The decedent boarded an open, northbound car at Amsterdam avenue and One Hundred and Fortieth street at two-forty or two-forty-five p. m. on the 24th day of May, 1910, and paid his fare and then showed no evidence of illness or intoxication and he was carried on the car to Fort George and thence back down to the post
The learned trial court repeatedly instructed the jury in accordance with the decision of the Court of Appeals, but charged erroneously, I think, with respect to the effect to be given to the conductor’s original diagnosis of the decedent’s condition as due to intoxication; and on attention being drawn thereto, by counsel for the plaintiff, failed to correct the error. The court instructed the jury that if when the car reached Fort George the first time the decedent had to the conductor the appearance of a man who was drunk, and the conductor used such ordinary care and prudence as would be expected under the circumstances, and his opinion that the decedent was drunk was confirmed by the starter who stated that the best thing for him to do would be to take the decedent downtown and give him some air, “ and that he believed he was drank during the whole trip up to the time he was finally removed from the car at the car stables, if that man honestly believed that, and if in honesty believing that
There is no special finding and, therefore, it may be that the jury found that the defendant was negligent but that such negligence was not the proximate cause of the death. These two important issues of fact having been submitted to the jury and a general verdict only having been rendered, if there was error with respect to either, the judgment entered on the verdict cannot be permitted to stand. On the new trial which becomes necessary there should be special findings on these issues as well as a general verdict. It follows that
Dowling, Page and Greenbaum, JJ., concur; Clarke, P. J., dissents.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.