Webb v. Yonkers Railroad

64 N.Y.S. 491 | N.Y. App. Div. | 1900

Woodward, J.:

The attention of this court is directed to various exceptions taken upon the trial, but these are either not properly before the court, or they do not represent reversible error. The first of these arises upon an objection to the question asked of the plaintiff in reference to her condition after the accident complained of. She had testified to the accident, and being asked “ just what happened to you in the way of injury — didn’t break any bones, did you ?” — the witness replied, “ NOj sir ; I didn’t break any bones; I fell violently on my side;; my whole side was badly bruised and also my hip ; of all the injury that was the most severest injury I had; it pained and ached me-continually all along ; it pains me even until now; I never got any relief.” She was then asked: “ You also worry considerable over it ?” To this an objection was interposed that it was immaterial, irrelevant and incompetent. The objection was overruled and an exception taken by the defendant. The rule is well established that' when the injury to an intelligent being, caused either by willfulness or by negligence, produces mental as well as bodily anguish, and sirffering, independently of any extraneous consideration or cause, it is impossible to exclude the mental suffering in estimating the extent of the personal injury for which compensation is to be awarded. (Kennon v. Gilmer, 131 U. S. 22, 26 ; Ransom v. N. Y. & Erie R. R. Co., 15 N. Y. 415.) Worry is an element of mental suffering, and it was, therefore, competent in the connection in which the question was asked.

The husband, who was away from home at the time of the accident and who returned some weeks afterward, testified, without objection : “ When I came back and found my wife she-was complaining in general. She was- complaining with her side and her head was affected a good deal.” He was then asked : “ Did she act anything different from what she did formerly ?” This was objected to as “ immaterial and irrevelant, the conversation between this witness and the plaintiff being had four weeks after the time of the accident.” The objection was overruled and the defendant excepted. No answer was made to this question, and the plaintiff’s counsel asked:

“ How did she act ?” To.-this the defendant made a general objection, which was overruled and an exception taken. Witness answered: “ She acted different in every way, of course; she was very nervous; she was not feeling well.” There was no motion made to strike out any part of this answer., and- we find no authorities which hold that the acts of persons may not be proved. “ Evidence,” says the court in Hagenlocher v. C. I. & B. R. R. Co. (99 N. Y. 136), “ may be given that a person' appeared to be in great agony; was emaciated; looked haggard and feeble, and why not that he screamed from ■ pain ? ” To the same effect, see Roche v. Brooklyn City & Newtown R. R. Co. (105 N. Y. 294).

The plaintiff’s attending physician was asked : “ This neurasthenia that .yon find the plaintiff is suffering from may be a permanent condition, may it not, doctor % ” A general objection was made to this question, and was overruled, when the witness answered: “ A recovery in these cases is possible where the person can meet the indication of it successfully. It involves considerable expense.” The defendant’s counsel moved to strike the answer out, which motion 'was denied and an exception taken.' The rule is well established in this State that where there is a general objection to evidence and it is overruled, and the evidence is received, the ruling will not be held erroneous unless there be some ground which could not have been obviated, if it had been specified, or unless the evidence in its essential nature be incompetent. (Tooley v. Bacon, 70 N. Y. 34, 37, and authorities there cited.) On the merits, however,.we are of opinion that, under the rule laid down in Griswold v. N. Y. C. & H. R. R. R. Co. (115 N. Y. 61, 63), the question was. competent, though it is possible that, had the defendant moved to strike out that portion of the answer which was not responsive to the question, it would have been entitled to have it eliminated. The motion to -strike out the' answer asked for more than the defendant was éntitled to, and having failed to call the attention of the court to that portion of the answer which was not responsive to the question, at a time when the matter might have been corrected, it is too late. now to urge the objection.

The judgment appealed from should be affirmed, with costs. ■

Judgment unanimously affirmed, with costs.