42 N.Y.S. 789 | N.Y. App. Div. | 1896
Lead Opinion
Frederick Weber, the plaintiff’s intestate, was, as it is "said, and as the jury has found, struck by one of the cars of the defendant company on the 9th of October, 1894, and received injuries-of considerable severity. He was wounded somewhat about the head, but the most severe injury was a blow upon the knee, which never, as it seems, was cured. After the receipt of these injuries, and in the month of June, 1895, Frederick Weber died, and the plaintiff, as his administratrix, brought this action to recover damages for his death, which, she charges, was the result of the injuries he received by the collision with the car in October, 1894. The theory of the plaintiff’s case is that the injury to the knee caused a tubercular condition of that part of the limb, which, gradually extending to the lung, by the action of natural causes, produced the consumption which caused his death, as a direct result of the injuries which he received. The defendant denied that the injury to the knee caused the consumption, and this was the disputed question of fact presented upon the trial, and decided by the jury. After the verdict had been rendered, a motion for a new trial was made upon the ground, among others, that the verdict was contrary to the weight -of the evidence, and upon a denial of that motion, and the entry of judgment on the verdict, this appeal was -taken.
The appellant renews here the point it made before the judge at the trial, that -the evidence was not sufficient to. warrant a verdict in favor of the plaintiff, because it did not justify the jury in concluding that the consumption which it is conceded was the immediate cause of the death of Frederick Weber was produced by the injury to the knee received by him at the time of his hurt. Before the plaintiff can recover for the death of this man, she must prove that the injuries he received were the proximate cause of the death. That is to be determined as a question of fact by the evidence given upon the case. The question always is, was there an unbroken connection between the wrongful act and the injury,—a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make' a natural whole, or was there some new and independent cause intervening between the wrong and the injury? Railway Co., v. Kellogg, 94 U. 8. 469. It is not necessary for the plaintiff, who-claims that the injury was the proximate cause of the consumption of which this man died, to show that it was the only cause. It is' sufficient if she establishes that the injury set in motion other causes which producéd the disease and the death, but which, in the absence of this injury, would not have produced it. Pollett v. Long, 56 N. Y. 200. But this proof on the part of the plaintiff must be made by evidence which establishes the fact, and unless the evidence is sufficient to show the connection between the immediate cause of the death and the injury received the plaintiff cannot recover. The claim here was that the injury to the knee caused a tubercular condition of the limb, and that this tubercular condition gradually, by the operation of natural causes, extended to the lung of Weber, and produced the consumption which caused his death. It appeared from the testimony that the wound upon the knee was a bruise, and that there was-no cut or laceration sufficient to permit the examination of the joint
In this case three physicians were sworn on the behalf of the plaintiff. One was Dr. Charles W. Miller, who saw Weber on the day of the accident, and who attended him from the 9th to the 15th of October, and describes generally his condition during that time. He found at that time acute synovitis of the right knee, with swelling and contusion of the muscles and tissues "of the right leg. .He ■ says that it was a serious inflammation of the knee joint; that the right knee was swollen from two or three inches above the knee almost down to the ankle. He says that the knee was stiff. He left the patient on the 15th of October, by which time the swelling-had gone down somewhat, and the condition of the knee had improved, but it was still stiff, and there was still some inflammation. Dr. Miller never saw Weber after the 15th of October, and his tes
It was made to appear by the testimony, and was not denied, that such a. condition of the knee would not be likely to produce tuberculosis in any other part of the body, as a direct result, unless there was tuberculosis in the knee. Dr. Hoffman said that when there was “tuberculosis in the body the inflammatory product which is carried from one part, or which is present in one part of the body, is associated with other parts of the body in consequence of the circulation of the blood. It was through this exudation, through this deposit in the knee joint which is carried up in the circulation through the blood into the lungs, and in that way the bacilli are provoked to bring on one disease in conjunction with the other.” None of the witnesses contradicted this theory of Dr. Hoffman, and .Dr. Fowler substantially corroborated it. So it will be seen that there lay at the basis of the plaintiff’s case a necessity of proving that the knee was in a tubercular condition, and that because of this condition the operation of natural causes produced tuberculosis in the lung. The plaintiff’s case failed, therefore, unless it was made to appear that there was tuberculosis of this knee. In making this examination we take no account of the testimony of Dr. Hoffman, which it may be assumed was mistakenly given, that there was
“The fact that the man had a consolidation of the right lung, and that his knee was ancliylosed, led me to determine that he had tubereulars deposited in his knee joint and in his lungs. There is a scientific process of finding out whether there is anything tubercular at the knee. I ascertained definitely whether there was anything tubercular at the knee. I absolutely determined whether there was anything tubercular at the knee by this method that I have just explained. 1 found consolidation of the lung, and there was some trouble there at the knee. I said there was tuberculosis at the knee. That is part of what I call an exact scientific method. I was not called upon to act with the rest of the method; that is sufficient to determine in very many cases. I know there was Tuberculosis in the lungs, or something tubercular there, because there was high Temperature there, a cavity, and Joss of flesh and emaciation. They do not have all these symptoms in bronchitis,—all these symptoms I have just given you,—in broncho-pneumonia; it depends on what kind of pneumonia it is. In the early stages of pneumonia you have consolidation.”
The method which he had just explained, by which he determined that there was anything tubercular at the knee, was, as it seems, simply a conclusion that there was pus in the knee joint. But it was made to appear in the case, and was not disputed, that the mere existence of pus in the knee joint was not sufficient to warrant a conclusion that there was tuberculosis there. There could be no tuberculosis unless there were tubercles, and there were not necessarily tubercles where there was pus. This was undisputed in the case, and Dr. Hoffman by no means meets that difficulty, because he said especially that while there Avas a scientific way of finding out whether the accumulation at the knee was pus or water, and that it was possible -to ascertain what the pus contained, he did not take any such means. Dr. McHale, who was also sworn by the plaintiff as a witness, testified that one could, by scientific process, find out whether there is any tubercular condition of the joint, “provided you get the
This is practically all the testimony in the case from which the jury would.be at liberty to infer that the consumption was the result of the injury to the knee. As it seems to us, the testimony was entirely insufficient for that purpose. It was an inference based upon.
But there remains for examination one question which was presented upon the trial, and which will be presented when the new trial is had, and will necessarily require a decision. For that reason it is proper that we should decide it. The amount of the verdict in this case was $6,500, and the amount demanded in the complaint was $20,000. The court was asked to hold that in no event could the plaintiff recover more than $5,000 in the case, and to the refusal so-to instruct the jury the defendant excepted. The question presented by this exception is whether the provision of the constitution which went into effect on the 1st of January, 1895 (Const. 1895, art. 1,. § 18), so affected the right of action in this case as to take away the limit of the right to recover, which before then had been fixed at $5,-000. This provision of the constitution has been so far construed that the courts have held that it is not retroactive, and that it did not affect causes of action which had already accrued at the time when it took effect, which was the 1st of January, 1895. O’Reilly v. Stage Co., 87 Hun, 406, 34 N. Y. Supp. 358; Isola v. Weber, 147 N. Y. 329, 41 N. E. 704. In each of those cases the injury, and the death also, occurred before the 1st day of January, 1895, and the question presented was whether, the right of action being perfect at the time the constitution took effect, the removal of the limitation applied to those actions, and permitted in them a recovery for a greater sum than the former limit of $5,000. Whether those cases are decisive of the case at bar, or whether the reasoning of those
“The statute does not revive the cause oí action in favor of the executor. The ■compensation for the bodily injuries remains extinct, but a new grievance' of a •distinct nature, namely, the deprivation suffered by the wife and children, or •other relatives, of their natural support and protection, arises upon his death, and is made by the statute the subject of a new cause of action in favor of these surviving relatives, to be prosecuted in point of form by the executor or administrator.”
VAN BRUNT, P. J., and BARRETT and PATTERSON, JJ., concur.
Now embodied in Code Civ. Proc. § 1902.
Dissenting Opinion
(dissenting). The action was brought to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the negligence of the defendant. On the 6th day of October, 1894, the intestate, while crossing the tracks of the defendant’s road, at Eighty-Seventh street and Third avenue, was struck-by one of the defendant’s cars, and was thrown down and received the injuries from which his death is alleged to have resulted. He
The court charged most of the requests submitted in the behalf of the defendant, but refused to charge that the recovery could not ■exceed $5,000, to which refusal an exception was taken. The verdict was in fact $6,500. This refusal to charge was erroneous and resulted in a verdict which the jury was not authorized to render. The accident occurred prior to the time the constitutional amendment went into effect, January 1, 1895. The death occurred after the amendment had gone into effect. As the law stood prior to January 1, 1895, a recovery in this kind of an action could not ex ■reed $5,000. The amendment provided:
“The right of action now existing to recover damages for injuries resulting in ■death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.” Article 1, § 18.
It has been held that this provision of the constitution has no retroactive effect. O’Reilly v. Stage Co., 87 Hun, 406, 34 N. Y. Supp. 358; Isola v. Weber, 147 N. Y. 329, 41 N. E. 704. In these vases the injuries and deaths were all prior to January 1,1895, when the amendment went into effect, but the reasons given for the decisions in those cases are equally applicable here. It was said in the O’Reilly Case, and the reasoning was adopted in the Isola-Weber Case, that:
“The effect of the constitutional provision * * * is twofold,—it imposes a greater liability on persons wrongfully or unlawfully causing the death of others, and confers additional benefits on persons in whose favor a right of action is given for such wrongs; and such provisions, whether constitutional or statutory, are seldom construed to have a retroactive effect * *. A law is never 1o have a retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect. If all its language can be satisfied by giving it prospective operation, it should have such operation only. * * * There is no express provision in the constitution that the section quoted shall affect rights or liabilities arising out of past transactions, nor is there a hint that the section was intended to have a retroactive effect.”
The right of action here grew out of the negligent acts of the defendant, which took place prior to the time this provision of the constitution went into effect. The results of those acts alone occurred after the time the provision took effect. The defendant was not, after this provision took effect, guilty of any negligent acts upon which this right of action was based; and therefore to make the constitutional provision in question applicable to this case would be to give a retroactive effect to the provision of the constitution. The reason of this rule is, manifestly, .that one is entitled to know the legal consequences of his negligent acts when they are committed, that he may be able to understand the results to him of such acts, rather than have forced upon him, after the acts are committed, results or penalties greater than those which existed at the time of their commission. It would give a retroactive effect to the provision to make it import a greater liability upon this defendant for negligently causing the death of plaintiff’s intestate than existed
In the course of the charge the learned trial judge used the following language:
“The defendant’s claim is that the deceased did die of consumption, but that it was due to conditions which existed at the time of the accident, and which were not influenced by the injury to the lmee; that if these contusions did produce the condition of the knee testified to by the physicians as being tuberculosis, but that condition had nothing to do with the subsequent development of consumption.”
The defendant excepted to the latter part of this language, commencing with the words, “that these contusions,” but did not except to the first part of the language here quoted. It is claimed that the court, in the use of this language, incorrectly stated the defendant’s position, and in effect told the jury that the defendant conceded that the injuries received by the intestate at the time of the accident produced the condition of the knee which the physicians said was-tuberculosis, whereas the defendant claimed all along that there was-no tuberculosis of the knee, and that no such condition was produced hy the injuries received at the time of the accident. Taking the whole language quoted together, that which was not excepted to as well as that which was, we fail to see how the jury could have been misled, to the prejudice of the defendant, by this part of the charge. The court did not intend to convey the idea that the defendant conceded that there was tuberculosis of the knee, which was produced ‘ by the injuries, but that the tuberculosis of the knee, if it existed at all, was not the result of the injuries, but of conditions of the system existing at and before the time the injuries were received. By inserting the word “if” before the words “these contusions,” and changing the word “but” to “yet” a little further on, the language would have been literally correct and unobjectionable, and would then have been as follows:
“The defendant’s claim is that the deceased did die of consumption, but that it was due tó conditions which existed at the time of the accident, and which were not influenced by the injury to the knee; that if these contusions did produce the condition of the knee testified to by the physicians as being tuberculosis, yet the condition had nothing to do with the subsequent development of consumption.”
This was a fair statement of the defendant’s position, and what the language of the charge quoted fairly imported, and what under the circumstances the jury must have understood the learned judge to say. An examination of the record as to what took place upon the trial shows that the defendant’s position was clearly taken, and must have been well understood by the court and the jury, and this language in the charge could not well have misled any one, even if it was, by a technical and literal construction, not just right. At the close of the charge the defendant, among other numerous exceptions taken, took this exception. There was no specific objection made to> the language that it incorrectly stated the defendant’s position. The. attention of the learned judge was not called -to the technical incorrectness of the language of the charge. If it had been, we cannot
“The defendant’s claim is that the deceased did die of consumption, but that it was due to conditions which existed at the time of the accident, and which were not influenced by the injury to the knee.”
It is also said that there was error in the charge as to damages, the jury having been instructed that upon this subject they should consider the earning capacity of the deceased, the business in which he was engaged, and what he was able to earn; what the receipts of the widow and the profits of .the business were. That these were proper subjects for the consideration of the jury, when there was evidence with reference thereto, is not disputed, but it is said that there was no such evidence in the case. It did appear in the evidence that the deceased was engaged in the coal business, and the widow testified as to what moneys she received from him. The only question made here relates to his earning capacity, and, as indicative thereof, the profits made by him in the business. The defendant requested the court to charge that “there is no evidence of the profits of the business of the deceased.” And the court so charged, “with the modification that the plaintiff’s widow testified that her husband gave her $20 to $25 a week.” And then in the body of the charge the learned judge said:
“You are to consider his earning capacity, the business in which he was engaged, and what he was able to earn * * <=. In assessing the damages, the jury, of course, must proceed upon the facts in the "case and reason upon those facts. The testimony of the widow is that her husband gave her from $20 to $25 a week. The claim of the defendant is that that does not show that that was the profit of his business; that it shows nothing beyond that he received that amount from his business, but what the profits were the evidence does not disclose. It is for the jury to determine from that evidence what his profits were from the business. Of course, the jury must take into consideration the probabilities of business. It would not, of course, be correct to assume that the business would always be prosperous, or that the return from the business would always be certain.”
It will be remembered that this evidence was not given for the purpose of enabling the jury, as an element of damage, to include in their verdict any amount as the profits of the deceased’s business, but merely as bearing upon the value of the deceased’s life,, and the compensation, for pecuniary injuries resulting-from his death, to the widow and next of ldn. It was not necessary that there should be