66 Barb. 125 | N.Y. Sup. Ct. | 1867
By the Court,
This action was brought to recover for damages sustained by the plaintiff by reason of the train of cars on which he was a passenger being thrown from the track of the defendant’s road, near the city of Auburn, in September, 1865. The cause was tried at the Cayuga circuit in October, 1866, and there was a verdict for the plaintiff, for $1,800 damages. The defendant; moved for a new trial, at the circuit, on the judge’s minutes, and the motion was denied. It is not claimed that the verdict can be disturbed unless the court erred in one or other of the rulings to which exceptions were taken on the trial.
The plaintiff was permitted to prove that rotten ties were found on the track within a few rods of the place where the cars ran from the track. To the admission of this evidence the defendant’s counsel duly excepted.
The cars ran from the track on or near the eastern end of a curve in the track about one mile and a quarter east of Auburn. The precise point where the cars left the track was not known, and consequently the cause of the accident could not be clearly ascertained. The plaintiff alleged that it was caused either by the rottenness of the ties, or by the improper elevation of the rail on the outer or convex side of the curve. As the precise point of departure could not be ascertained, and as the defendant’s workmen proceeded to repair the track very soon after the accident, by removing the old ties and rails, and putting in new ones, it was impossible for the plaintiff to show the condition of the track at the precise place where the accident occurred. If the ties were proved to be rotten, an adequate cause for the accident would be established; and as their condition at the point of divergence could not be ascertained, it was
The plaintiff called and examined one Casey as a witness, who testified that he resided in Auburn; that his business of late years was manufacturing generally; was formerly a builder. He was at the place of the accident the morning after it occurred. He saw nothing to examine, except a lot of rotten wood which had been ties. Ties first decay under the rail; saw spikes sticking up, which indicated to him that the ties were rotten in the middle. He could push his cane into one-fourth or one-third of the ties, the length of the ferule. The ties were apparently sound, except where the rail lay upon them, and there it first decays. This was the condition of the road for half a mile. The accident occurred at the east
It is a law of bodies in motion that their tendency is to move on in straight lines; hence when they reach a curve this tendency would have the effect to throw them off on the convex side. To counteract this tendency the rail on that side is elevated and the centre of gravity removed from the centre toward the concave side. When the moving body first strikes the elevated rail, the weight of the engine or car, or the centre of gravity, is moved to the other side with greater or less force and consequent rapidity, depending on the speed of the train; and if the rail on the concave side is not properly secured, it will be forced from its place, and the car or engine losing the support of the rail will rush from the track. I repeat, the question could be answered by any person acquainted with the elementary principles of mechanism, and the witness swore he was an expert in that branch of knowledge. If it was true that a knowledge of the construction of railroads, or of the movement of trains over them, was essential to enable the witness to answer the question, it should have been made in some way to appear; as prima facie an acquaintance with the elementary principles of mechanism was sufficient. The learned judge who tried the cause was doubtless of this opinion, as the witness only claimed to be an expert in that branch of science, and did not claim to have any knowledge of constructing or operating railroads.
For these reasons, I think the evidence was properly received.
The court permitted the plaintiff’s counsel to prove by a physician that some weeks after the injury, and after the commencement of the action, the plaintiff complained of pain in the back and soreness in his side.
The statements made by a patient to his physician, as to his condition, after an injury caused by the wrongful act or neglect of another, are received from the necessity of the ciase, and furnish one of the few exceptions to the general and almost universal rule, that a party to an action cannot give his own statements in evidence in his own behalf. Without a description by the patient of his condition and symptoms, it wxmld be impossible for a physician to administer treatment; and it would be equally impossible for a court to ascertain, in many cases, whether there were actual injuries, and whether they wore permanent or temporary merely. It would be impossible to adequately protect the rights of a plaintiff and exclude such declarations. The defendant’s counsel does not object to the declarations as being incompetent on any other ground than that they were made after suit brought. The learned counsel has not given any reason why those made after suit should be' excluded, and I can perceive no reason for their exclusion that would not apply to those made before suit. In Werely v. Persons, (28 N. Y. 344,) it was held competent to show the plaintiff’s statements as to his condition for a period of two months after the injury. It is possible that statements thus made are false, but they are no more likely to be so when made after suit brought than before. And as the plaintiff may recover for all damages naturally resulting from an injury, those occurring after suit as well as before, it becomes indispensable to admit the party’s declarations, so as to enable the jury to ascertain whether the injuries are permanent or merely temporary. The length of time that elapsed between the accident and the declaration was a proper subject for the consideration of the jury. The court could not say that they were incompetent because of mere lapsé of time.
The case was properly disposed of at the circuit, and the motion for a new trial should be denial, and judgment ordered for the plaintiff on the verdict.
Morgan, Bacon, Foster and Mullin, Justices.]