39 Misc. 802 | N.Y. App. Term. | 1903
This is an action for damages for personal injuries. The plaintiff was a passenger on one of the defendant’s cars, and in his complaint he alleges, .that at Sixth avenue and Fourteenth street “he was in the act of getting off” the car, “ after the said car had stopped,” and that while in the act of alighting, and “ without any fault or negligence on his part, he was violently thrown from said car,” and “ the injuries suffered by said plaintiff were caused by the wrongful acts, neglect, default and want of proper care and skill of the defendant, its agents and servants aforesaid, who suddenly started said car.”
Defendant moved for a dismissal on the opening remarks of the plaintiff’s counsel. The grounds upon which the motion was made were not stated, so far as the record shows, but upon the renewal of the motion, at the close of the plaintiff’s case, it is made clear that the plaintiff’s counsel had stated that “ the car was slowly moving ” instead of stating that it was at a standstill when the plaintiff attempted to alight. The defendant contended that this variance between the allegation in the complaint that the car “ had stopped ” and the fact that it was coming to a stop, was fatal to a recovery.
Plaintiff testified that the car had come to a full stop, before he attempted to get off. A witness named Gebhart, called in plaintiff’s behalf, testified that “ the car was about to come to a stop; when it was almost to a stop, it gave one lunge ahead, and Scarry went off this way and his head hit up against the pillar ” of the elevated structure.
“ By the court: Q. Then the car did not stop at all at Fourteenth street, is that the version? A. Ro; I don’t say that. It came almost to a sudden stop and then it suddenly started ahead. Oh, no; it stopped then. After the car was about to come to a stop. It was about to stop and all of a sudden it gave a lunge or sudden jerk and then the accident happened, and then it went about a few feet further, and then the car stopped.”
After both sides had rested, the plaintiff’s counsel moved “ to conform the pleadings to the proof.” The court: “The pleadings conform to the proofs now, do they not? ” Plaintiff’s counsel: “ There may be some question about it; I move to conform the pleadings to the proof.” The court: “All right; your pleadings will conform to the proof.”
After both sides had summed up, the court in its charge instructed the jury that “ the version of Gebhart is that the car never came to a full stop at all, until after the accident. Lf the accident happened as Gebhart says it did, the plaintiff would have a cause of action against the defendant, but he could not stand upon the complaint which he sues upon in this action.” Plaintiff’s counsel excepted to the charge “ in so far as you say in substance that if the jury believes the testimony of the plaintiff’s witness Gebhart, that then plaintiff cannot recover. The court: “I do not so charge.”
Thereafter the court of its own motion stated: “ Row, with reference to your request to amend your pleadings to conform to the proof, Hr. La Fetra (plaintiff’s counsel) an exception was taken to that ruling.” Defendant’s counsel: “ I took an exception.” The court: “ I will reconsider that, for this reason,
The respondent relies upon the case of Patterson v. Westchester Electric R. Co., 26 App. Div. 336, and Anderson v. Third Ave. R. R. Co., 36 id. 310, in support of the court’s ■rulings.
In the Patterson case there was no amendment of the pleading requested, and as was pointed out by Mr. Justice Cullen in his opinion in Anderson v. Third Avenue, supra, on page 311, from which we will quote, the reversals which were ordered in both of these cases were based upon the errors of the trial judges in refusing to charge the jury in a way that would present the theory of the defense, which was that the war was in motion, and that the accident was due entirely to that circumstance. Judge Cullen says: “ But I reach this conclusion only because the testimony in the case presented two irreconcilable theories of the manner in which the accident was occasioned, and a finding that' the car was moving when the plaintiff attempted to get on was fatal to the plaintiff’s theory. But it must not be understood that every inaccuracy or mistake made in the testimony of a witness as to the manner in which an occurrence has transpired, Is fatal to the party’s claim. When the credibility of a witness Is for the jury to pass upon, the jury is not limited to rejecting ar accepting his testimony in whole; they may accept part and
It will thus be seen that it was not necessary in the Patterson case for the court to have said: “ The effect of such a change would be to authorize a recovery upon evidence which disproves the cause of action averred in the complaint, and which is opposed to her proof. Many authorities condemn the plaintiff’s claim. (Caven v. City of Troy, 15 App. Div. 163; Neudecker v. Kohlberg, 81 N. Y. 296; Southwick v. First Nat. Bank, 84 id. 420.)”
Caven v. City of Troy, 15 App. Div. 163, was a case where the action upon which a recovery was held, was for an act of negligence not stated in the complaint, and where different questions of law and fact would be applicable to the new facts established upon the trial, than to the cause of action alleged in -the complaint.
Neudecker v. Kohlberg, 81 N. Y. 296, was a case in which the canse of action was one ex delicto and it was sought to convert it into one ex contractu.
In Southwick v. First Nat. Bank, 84 N. Y. 420, the plaintiff failed to prove the cause of action set up in the complaint. Ro amendment of the pleading was asked for or ordered and a judgment was permitted “ upon a cause of action entirely separate and distinct from that alleged.” The following extract from the opinion of the court in that case (Judge Earl writing), page 428, is instructive: “ The Code requires that the complaint must contain a plain and concise statement of the facts constituting
It is, therefore, manifest that the doctrine that the judgment must be secundum allegata et probata, which is upheld in the' decision cited in the Patterson case, should have no application to a case such as is here presented, unless the fact that the car was “ slowly moving ” or “ slackening up ” instead ■ of being brought to a “ stop,” changed the cause of action or added a new one.
In the case of Rosenberg v. Third Avenue R. R. Co., 47 App. Div. 326, where a situation similar to that here presented existed, the learned justice who wrote the opinion in the Patterson case, stated that “ no new cause of action was added ” where an amendment like that here presented was granted. ■
The complaint in this case shows that the liability of the de-fendant was predicated upon the negligent act of the employee, in suddenly and unexpectedly starting up the car, while the plaintiff was in the act of alighting.
It might well be argued that in view of the other specific alie
The cause of action thus arises out of the negligent act of the defendant at the moment when the passenger was justified in believing that it was safe to alight, and while it is true that no recovery could he had unless the injured one was himself free from negligence, it is difficult to see how the defendant could he misled or injured by a variance between the allegation that the car had stopped and the proof that it was slowly moving or was about coming to a stop.
Suppose the plaintiff’s testimony and that of several disinterested witnesses called by him was to the effect that the car had stopped, and the proof of the defendant’s witnesses only differed in that the car was slowly moving at the time the passenger attempted to alight, would it be proper for the trial court to instruct the jury that if they believe the defendant’s witnesses, there could be no recovery? Or suppose the plaintiff had alleged that while the car was slowly moving and about coming to a stop in order to permit him to alight, the car suddenly and without warning was started, etc., and threw him to the ground. Would such an allegation defeat a recovery, without amendment, if it appeared at the trial, that the car had in fact came to a stop when the plaintiff attempted to alight?
As the only effect of a variance between a pleading alleging “ a stop ” and the proof that the car was “ moving ” would he to present a situation more favorable to the defendant, on the question of the plaintiff’s contributory negligence, it is not apparent how any injustice would thereby come to the defendant.
As was stated by Hr. Justice Earl in the Southwick case, supra,
"While it is doubtful if any amendment was necessary in this case, it is clear that in any event, an amendment to conform the pleading to the proof should not have been refused. The learned trial justice evidently labored under the impression that the allegation of “ a stop ” was inconsistent with the proof of “ motion,” and thereon based his reconsideration of his ruling on the motion to amend. ■
The plaintiff was justified in proceeding to trial upon the assumption that in case an amendment was necessary it would be granted, and he was prejudiced by being lulled into the belief, before summing up to the jury that the amendment had been allowed. He had a right in addressing the jury to rely upon the previous ruling of the court respecting the amendment.
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
Freedman, P. J., and Clarke, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.