Streng v. Frank Ibert Brewing Co.

64 N.Y.S. 34 | N.Y. App. Div. | 1900

Woodward, J.:

On May 1,1899, the plaintiff in this action was standing upon the street in front of 1205 Myrtle avenue, borough of Brooklyn.. A team belonging to the defendant and in charge of its servant was left standing, without hitching, in front of a hardware store a few doors up the street. The team became frightened and started to run. Immediately in the pathway of the advancing team a child was playing in the street, and the plaintiff, with á laudable ambition to save the child from injury, ran out into the highway, secured a hold upon the reins and succeeded in stopping the team, though not until he had been dragged under the feet of the horses, sustaining the injuries of which he here complains. Upon the trial the facts necessary to establish the cause of action for negligence on the part of the defendant were established by the plaintiff, and the court rendered a decision, upon which judgment was entered for $200 damages, with costs and allowances.

From the judgment entered appeal comes to this court, the defendant alleging error in the admission of evidence as to the character of the injuries. Plaintiff’s physician, who was shown to have been in practice for about thirty years, was asked : “ Now, doctor, from your experience as a physician and surgeon, can you state whether the injuries sustained at that time and discovered by yon may be permanent in their nature ? ” This question was objected to “ as improper in form and incompetent, and, further, on the ground that the witness has not been shown competent to express an opinion, and, further, upon the ground that the hypothesis is not sustained by the evidence.” The court overruled the objection, and the doctor answered : “ They may be permanent; yes.” He was then asked : “ In what way ? ” (Same objections and ruling.) “ A. Well, the knee joint when once injured quite severely is liable to chronic inflammation from subsequent slighter injuries.” Defendant’s counsel moved to strike this answer out as incompetent, and upon the ground that the proper foundation had not been laid for it, but the court admitted the answer and the defendant took an exception. We are quite clear in the opinion that these answers constitute reversible error under the rule laid down by the court in Strohm v. The N. Y., L. E & W. R. R. Co. (96 N. Y. 305) and followed” since that time. “ Consequences which are contingent, speculative or merely possible,” say the court in a leading case, “ are not proper to be considered in ascertaining the damages. It is not -enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.”

The judgment appealed from should be reversed and a new trial ordered, costs to abide the event.

All concurred.

Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.