82 N.Y.S. 220 | N.Y. App. Div. | 1903
Lead Opinion
A jury was waived in this action for negligence, and the court made a decision in the short form authorized by section 1022 of the Code of Civil Procedure, upon which the plaintiff entered judgment. As the appellant failed to take or file exception to the decision, the respondent insists that we are powerless even to review the rulings upon evidence made during the trial. Several decisions of this court in another department are cited by the learned counsel, of which some expressly sustain his contention. Examination of these authorities shows that for the most part they are based upon Otten v. Manhattan Railway Co. (150 N. Y. 395). I am not convinced that our opinion in Reiners v. Niederstein (55 App. Div. 80) did not state the true rule; that, notwithstanding the absence of the exception provided for by section 1022 of the Code of Civil Procedure, we have the power to examine the rulings of the trial court upon questions of evidence to which exceptions were then taken.
Section 1022 does not expressly prohibit such review in the absence of the exception therein described. It seems to recognize an appeal although that exception be neither taken nor filed, and, as Vann, J., says in the Otten Case (supra), the exception is not a
This is not an equity decision. It is the same as a general verdict by a jury (Amherst College v. Ritch, 151 N. Y. 282, 320), and as on an appeal from a judgment entered upon a verdict the court may review the exceptions taken on the trial (Third Avenue R. R. Co. v. Ebling, 100 N. Y. 98), I do not see why the same rule should not obtain in this case rather than the rule of the Court of Chancery.
A reading of the opinions in both Ross’ Case (supra) and the case cited therein (Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437) shows that in each case the court assumed that the exceptions to the rulings could have been considered despite the absence of an exception to the decision.
The complaint alleged that plaintiff, “ by reason of said fall, suffered serious and permanent injuries to his head and body, and nervous and physical shock, * * * has suffered, and will continue to suffer, grievous pain in the head and body, loss of sleep and loss of memory, has been permanently weakened in the head, and incapacitated for arduous physical or mental labor.” Evidence of impaired hearing was admitted, although objected to as not pleaded. I think that the exception was well taken. If impaired hearing was not the necessary result of the accident, the question is whether under the pleading a defendant could reasonably expect proof of deafness. It is to be noted that the plaintiff, after the general allegations of injury, went on to specify that he has suffered pain in the
In Quirk v. Siegel-Cooper Co. (43 App. Div. 464) the injury was to the eye and proof was held competent under the allegations of internal and other bodily injuries.” But there was no specification -of injury beyond the general allegation, as in this case, and the court *
The judgment should be reversed and a new trial be ordered, costs to abide the event.
Hirschberg and Hooker, JJ., concurred ; Bartlett, J., read for affirmance, with whom Woodward, J., concurred.
Dissenting Opinion
Two forms of decision are provided for in section 1022 of the Code of Civil Procedure as it now stands : (1) A decision stating separately the facts found and the conclusions of law; and (2) a decision stating concisely the grounds, upon which the issues have been decided. The latter form of decision has been abolished by an act of the present Legislature, to take effect on September 1,1903 (Laws of 1903, chap. 85). I do not think it altogether clear to which class the decision of the city judge of Yonkers in the present case belongs. It contains findings of fact rather than a statement of the grounds of the decision ; but there is no conclusion of law expressly stated, though, perhaps, one may be implied from the direction that judgment be entered in the plaintiff’s favor for the amount of damages which the court finds that he has suffered. Whatever may be the proper classification of the decision, however, I agree with Hr.
Nevertheless, I am unable to concur in the conclusion that there ought to be a reversal on account of the admission of testimony to the effect that the plaintiff’s hearing was considerably worse at the time of the trial than it was before he was thrown from the defendant’s car. The testimony on this subject was as follows:
“ Are you able to hear as yon did before? [Objected to upon the ground it is not pleaded. Objection overruled. Exception.] A. My hearing is considerably worse than it was before I fell; I could hear good. I cannot hear as distinctly now as I could before the accident. Most of the time I have got to ask twice ; if I don’t look at the mouth of the person who is speaking I don’t understand.”
Here was no attempt to prove permanent deafness. The utmost that the evidence tended to establish was that at the time of the trial — a little more than a year after the accident-—The plaintiff’s hearing was somewhat impaired and that he attributed the impairment to defendant’s negligence. It seems to me it would establish too restrictive a rule of pleading to hold that such fact could not be proven under the allegations of this complaint in reference to damage. The defendant did not claim to have been taken by surprise, nor does the judge appear to have awarded anything on account of plaintiff’s impaired hearing. His findings on this subject are that “ the plaintiff was pitched off the car upon the macadam roadbed, striking on his head and shoulders with great violence, bruising and laming him severely ; ” and he finds also “ that plaintiff’s injuries were of a serious nature,” for which he awards him the sum of $1,000. This is all that the decision contains on the subject of the plaintiff’s injuries, and its language seems to me to leave no doubt that the alleged impairment of hearing was not taken into consideration in fixing the amount.
The physician who treated the plaintiff testified that he observed at the trial that plaintiff was hard of hearing, but he was unable to tell whether he was so before the accident or not. In the testimony of this witness as to the permanence of the injuries, no reference was made to any effect of the accident upon the plaintiff’s
Woodward, J"., concurred.
Judgment of the City Court of Yonkers reversed and new trial ordered, costs to abide the event.