13 N.Y.S. 670 | N.Y. Sup. Ct. | 1891
The plaintiff was injured while riding as a passenger in one of the cars of the defendant, by a collision between the car and another vehicle upon the street, on or about the 22d of April, 1885. The injury received by .her was charged to have been permanent, and to have resulted in a miscarriage of a child of which she was at the time pregnant. Her evidence tended directly to prove that the collision with the other vehicle in the street resulted from carelessness or improper management on the part of the driver of the car. It also tended to establish the fact that these other allegations contained in the complaint were truthful. But in the examination of physicians who were called upon to testify as witnesses in her behalf, questions were allowed to be answered, under the exceptions taken by the defendant, which are now insisted upon as erroneous. By one of these questions the witness Nordeman, who was a practicing physician, was asked: “Assume that Mrs. Uransky was in good health upon the afternoon of April 22,1885, and became a passenger upon a street-car, which ear came into collision witha truckfthat the collision was so great as to result in her striking her head against a pane of glass; that the pane of glass was broken, and her head was cut; that she then went home and went to bed, and two days afterwards had a miscarriage, having begun to bleed at her womb some hours after she returned home, and the bleeding having kept up until the miscarriage took place,—would you, as an expert, say that the miscarriage was the result of that collision?” This was objected to as incompetent, and the objection was sustained by the court o.n the ground that there was no such testimony in the case as was included in the question. After that ruling was made, this further question was propounded to the same witness: “Question. Having heard the statement made by counsel, and you having seen this woman on that evening, with the injury such as she had, would such injury as she was then suffering, in your opinion, be suilicient to cause a miscarriage on the following Saturday?” This was also objected to as incompetent, but the objection was overruled, and the witness answered, “Yes, sir.” Another physician, examined as a witness upon the trial, was asked these questions: “ Question. You have heard the statement contained in that question? Answer. I have heard the counsel make the statement now. Q. You have heard the statement of what were the injuries that this woman claims to have suffered on that day? A. I have heard
The court charged, at the request of the defendant,- that the jury were not bound to give to the evidence of the plaintiff the same credence whicli they would or ought to give to a disinterested witness, as she was to receive the fruits of the litigation, if the case proved successful. Upon the plaintiff’s request, the further charge was given to the jury that the defendant’s employes were not disinterested witnesses, and their evidence should be subjected to as severe criticism as the plaintiff’s; and to that an exception was taken on the part of the defendant. While the first of these directions was appropriate to the case, the second as clearly was not so; for the jury were not bound to subject the testimony of the defendant’s employes to the same severe criticism as they were the evidence of the plaintiff, but it was for.them to determine, in considering all the probabilities of the case, how much credit these witnesses were entitled to receive in their statements at the hands of the jury. This exception accordingly appears to have been well taken. Yeither of these objections were before the court upon the first appeal, the decision of which is reported in 44 Hun, 119, and 118 Y. Y. 304, 23 Y. E. Bep. 451, but they are presented for the first time upon this appeal. They were erroneously made, and went to the foundation of the plaintiff’s right to maintain the action and recover damages. And, without considering other objections of a somewhat similar character, the result seems to be unavoidable that this judgment and order should be reversed, and a new trial directed, with costs to the defendant to abide the event.