Bial v. Interurban St. Ry. Co.

Appellate Terms of the Supreme Court of New York

Bial v. Interurban St. Ry. Co.

90 N.Y.S. 434

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 10, 1904

StatusPublished

This text of 90 N.Y.S. 434 (Bial v. Interurban St. Ry. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bial v. Interurban St. Ry. Co., 90 N.Y.S. 434 (N.Y. Ct. App. 1904).

Pincite

Opinion

BISCHOFF, J.

The contentions of the defendant, that the verdict is against the weight of the evidence, and that the trial court erred in its refusal to withdraw varicocele, a varicose coñdition of the veins of the scrotum, as an element of the plaintiff’s injuries from the jury’s consideration, are totally devoid of gravity.

The plaintiff testified to the fact of the accident, and was corroborated by the testimony of three persons, eyewitnesses to the occasion. This was met by the defendant with the testimony of its accident clerk, who said that the plaintiff’s physician, Dr. Saphir, told him that the accident happened upon car No. 25, and by the testimony of the driver and conductor of car No. 25, two passengers, and a police officer, all [435]*435to the effect that these witnesses did not see any accident upon that car. Dr. Saphir was not shown to have had any personal knowledge of the accident. Neither did it appear that his report to the accident clerk, in that respect, proceeded from any statement of the plaintiff to him. Obviously, therefore, with the rejection of the accident clerk’s testimony as to the identity of the car, the plaintiff’s case was in no sense repelled.

The plaintiff testified that prior to the accident he did not suffer from varicocele, and, according to Dr. Saphir’s testimony, this condition did not become apparent until a day or two after the accident. Dr. Saphir further testified that, while varicocele is not ordinarily of traumatic origin, it is so in about 10 per centum of the cases, and in this he was corroborated by Dr. Benedict, a witness for the defendant, who testified that varicocele might result from injuries, but fixed the proportion of such instances at about 5 per centum of all the cases. Argument appears to be unnecessary to demonstrate that this testimony warranted a conclusion that the plaintiff’s condition was attributable to injuries sustained in the accident complained of.

Judgment and order affirmed, with costs. All concur.

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BISCHOFF, J.

The contentions of the defendant, that the verdict is against the weight of the evidence, and that the trial court erred in its refusal to withdraw varicocele, a varicose coñdition of the veins of the scrotum, as an element of the plaintiff’s injuries from the jury’s consideration, are totally devoid of gravity.

The plaintiff testified to the fact of the accident, and was corroborated by the testimony of three persons, eyewitnesses to the occasion. This was met by the defendant with the testimony of its accident clerk, who said that the plaintiff’s physician, Dr. Saphir, told him that the accident happened upon car No. 25, and by the testimony of the driver and conductor of car No. 25, two passengers, and a police officer, all [435]*435to the effect that these witnesses did not see any accident upon that car. Dr. Saphir was not shown to have had any personal knowledge of the accident. Neither did it appear that his report to the accident clerk, in that respect, proceeded from any statement of the plaintiff to him. Obviously, therefore, with the rejection of the accident clerk’s testimony as to the identity of the car, the plaintiff’s case was in no sense repelled.

The plaintiff testified that prior to the accident he did not suffer from varicocele, and, according to Dr. Saphir’s testimony, this condition did not become apparent until a day or two after the accident. Dr. Saphir further testified that, while varicocele is not ordinarily of traumatic origin, it is so in about 10 per centum of the cases, and in this he was corroborated by Dr. Benedict, a witness for the defendant, who testified that varicocele might result from injuries, but fixed the proportion of such instances at about 5 per centum of all the cases. Argument appears to be unnecessary to demonstrate that this testimony warranted a conclusion that the plaintiff’s condition was attributable to injuries sustained in the accident complained of.

Judgment and order affirmed, with costs. All concur.

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Bluebook (online)

90 N.Y.S. 434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bial-v-interurban-st-ry-co-nyappterm-1904.