66 N.Y. 50 | NY | 1876
The circumstances proved were sufficient to authorize the jury to find that the injury was caused by the act of the defendant’s employes. The evidence tends to show that as the plaintiff’s intestate was passing out of the car to alight, a sudden jerk was given to it backward, and the plaintiff was thrown suddenly forward, his carpet-bag striking the railing, and he striking the carpet-bag. This was proved to be sufficient to cause the hernia of which he died, i- The circumstances pointed to this as the cause, and repelled the idea of any other. True, the evidence was that it might have been produced by many other causes, but there was no evidence tending to prove that it was produced by any other. On the contrary, the inference was legitimate that it was not.
It is claimed that'the injury was not the proximate cause of death. ; The deceased had what the surgeons denominated strangulated hernia, an injury certain to produce death, unless relieved. Being unable to reduce it by pressure, an operation was decided upon and performed by surgeons of conceded competency and skill. The operation is a very delicate and dangerous one, but is often and perhaps generally performed with success. In this case the post-mortem examination disclosed that there were two strictures, only one of which had been cut, and that a mistake was made by pressing the intestine into an abnormal cavity, between the peritoneum and pubic bone, produced in some manner by a separation of the peritoneum from the bone, instead of pressing it into the abdomen. There was a difference of opinion whether the immediate cause of death was by the mistake in pressing the intestine into the wrong cavity or by the natural effect of the second stricture which was not cut; but assuming that it was the mistake, which is the most favorable for the defendant, is the principle invoked by the learned counsel applicable ? J
Here it is sought to shield the wrong-doer because the deceased failed to procure relief, although he used the usual and best available means for that purpose. He would have died without an operation; assuming that by the mistake of the surgeon the operation was not successful, can it be justly said, in the first place, that the surgeon and not the injury killed him; and in the second place, that the surgeon is to be regarded as a responsible intervening third person, within the rule referred to ? There is no authority that approaches such a proposition. Hence there was no error in refusing to charge that if death was proximately caused by pressing the intestine
Error is also alleged upon the .refusal of the court to change .that the plaintiff-could not recover, unless the jury found that the injury would be reasonably apprehended by a prudent .man as the result of the' alleged movement .of .the cars.- The court -declined to charge .other than -as he had charged. He had charged that if after the train was stopped it was given -such a jolt as to endanger the lives of passengers, the act would be wrongful. .The sudden jerking .of a train backward while passengers are -rightfully passing out .of the cars, is evidently -liable to produce accidents,’ and under, such circumstances is a.-negligent act. There was no foundation, therefore, for the test of apprehended danger by a prudent man. At all events, the -charge made was favorable to the defendant in -any aspect of the -ease. The Northampton tables were properly .received. (Schell v. Plumb, 55 N. Y., 592.) The probable duration of the -deceased’s -life was -an element in -estimating damages, and being so, it was proper to give this evidence upon the question.
The judgment must -be affirmed.
All concur.
Judgment affirmed.