Ingraham, J.:
The plaintiff was injured in endeavoring to get upon one of the' cars of the defendant’s railroad at Astor place and Broadway. He. was a passenger upon a Broadway car coming uptown and alighted from this car at Broadway and Astor place, receiving a transfer-ticket which would entitle him to continue his route uptown upon the Madison avennue line starting from the intersection of Astor place and Broadway. ' The' Madison avenue car, an open car, had come down Madison avenue and upon arriving at Astor place and Broadway it was necessary, before passengers could board the car on. its south side, to raise a parallel bar running the length of the car, and let down a stép, running along the side of the car, while on the north-side of the car it was necessary to lower the bar and raise the step. The plaintiff, with several other passengers, was waiting at Broad■way and Astor place to board a car. One passenger who boarded the car on the south side testified that he saw the plaintiff approach the car and attempt to board it on the south side; that at that time-, the parallel bar had been raised, but the step had not been lowered j. that as the plaintiff attempted to board the car the conductor-lowered the step, and as the.step fell it struck the plaintiff on the. knee. The plaintiff testified that he waited for this. car.; that the. passengers began to “ pour out and passengers began to pour in; ” that “ there were people getting in and being seated ; ” that he then, took hold of the two side bars and was just ready to step in- when something hit him on the knee and he fell; that he had been in the. habit of changing cars at this place for several years, and that tli& rule was to put the step down for the passengers to step on; that he knew that when the car stopped the step would come down for the passengers to step on, in order to get into the car, but that he-[51]*51considered that the step was down ; that he was looking at the side bar and did not 'look to see whether the step was down or not. The accident thus resulted from the plaintiff’s attempt to board the car before the step had been lowered, which would have enabled him to board it in safety. He knew that the step had to be lowered before the car could proceed uptown. He assumed that it had been lowered because the bar was raised, but there was nothing to justify that assumption. There was no invitation to the passengers to board the car by the employee's of the defendant, and nothing».to justify the plaintiff in assuming that the change had been made which he knew had to be made. There is nothing to show that the conductor, while attending to his duty in lowering this step and raising the bar on one side of the car, saw that the plaintiff was in a position in which he could be injured by the lowering of the step, and the evidence is that the whole occurrence — the arrival of the car from uptown, the change in these bars and steps, the rush of the passengers to board the car — all took but a very few moments, and this would seem to be a case in which the accident was caused by the act of the plaintiff in attempting to board the car before it was in such a condition that passengers could safely board it. The plaintiff took the risk of an injury incident to the condition of the car when he attempted to board it. He acted upon the assumption that the step was down, without making any investigation as to its actual condition, and without waiting for an invitation from the conductor, with knowledge of the fact that this change in the fixtures of the car was necessary before the car could proceed on its trip uptown. The fact that other passengers rushed to board the car was not sufficient to justify the plaintiff in assuming that the car was in a condition that would enable him to board it in safety ; and I do not think that we are justified in holding the defendant liable for an injury which resulted from the plaintiff’s attempting to board the car before the necessary changes had been made, which he knew had to be made, when an inspection would have disclosed the fact that the car was not ready for passengers to enter from the side from which the plaintiff attempted to enter it.
I also think that it was error to admit the testimony as to the permanent character of the injury and to allow the jury to include in.their verdict the damages caused by such permanent injury. [52]*52The complaint alleged that by reason of negligence of the defendant and its agents or servants the plaintiff received a fracture of the knee cap of the right leg, which injury disabled the plaintiff from attending to his business and 'confined him to his house for the period of four months, to the plaintiff’s damage of $15,000. There is no allegation that the injury was continuing; that it was permament or that future damage would result. The. allegation of damage is confined to the past effect of the injury. Upon the examination of Dr. Tuttle he was asked: “ From your knowledge of the wound and the operation, will his (the plaintiff’s) injury be permanent or temporary ? ” That question was objected to as not within the pleading, and after an intimation that there was doubt as to the competency of the testimony the court said : “ If you are willing to take the risk of it I will allow Dr. Tuttle to swear,” to • which.counsel for the plaintiff replied, “We are.” The question was then changed so that the witness was asked, “ What will be the probable result of this injury to the. plaintiff \ ” This was objected to as incompetent, immaterial, irrelevant and not pleaded, which objection was overruled, to which the defendant excepted. The answer was: “ The loss of motion in the knee joint, with stiffness and inability to walk without a limp, or to use the knee in the normal way.” In submitting .the case to the jury the learned trial judge, upon the question of damages, charged “ it is entirely within your province to award to Mr. Clark whatever sum, in your judgment, will be a fair and reasonable compensation to him for the pain and suffering which he endured during his immediate illness, and for the future results to him of these occurrences; ” and com- • menting upon Dr. Tuttle’s testimony the court said: “ Dr. Tuttle has described to you as. to how the patella or knee cap was fractured, how he treated it, that he made six or seven visits, I think, and that in his opinion the result of this injury is a stiffening of the right leg, due to stiffness at the knee joint, which loss of- motion will) in his opinion, be permanent.” At the end of the charge, counsel for the defendant excepted to that part “ of your Honor’s charge referring to the awarding of damages for future results of this accident to the plaintiff.” This exception certainly was broad enough to cover the charge of the court that the jury was entitled to consider, in fixing the amount of damage, the fact that there was [53]*53evidence to show that this injury would be permanent, or that the plaintiff would in the future suffer from the injury. There was no evidence in the case that a fracture of the patella would necessarily cause a permanent injury, or that the probable result of such a fracture would be a permanent injury to the knee. Dr. Tuttle had .testified that in this particular case the knee would be permanently stiffened, but the condition was not such as in the case of a loss of an arm or a leg or an eye, where a permanent impairment would necessarily result. In the case of the breakage of one of the bones of the body, it is possible that a permanent disability would follow, but that is by no means the probable result of a simple fracture.
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Ingraham, J.:
The plaintiff was injured in endeavoring to get upon one of the' cars of the defendant’s railroad at Astor place and Broadway. He. was a passenger upon a Broadway car coming uptown and alighted from this car at Broadway and Astor place, receiving a transfer-ticket which would entitle him to continue his route uptown upon the Madison avennue line starting from the intersection of Astor place and Broadway. ' The' Madison avenue car, an open car, had come down Madison avenue and upon arriving at Astor place and Broadway it was necessary, before passengers could board the car on. its south side, to raise a parallel bar running the length of the car, and let down a stép, running along the side of the car, while on the north-side of the car it was necessary to lower the bar and raise the step. The plaintiff, with several other passengers, was waiting at Broad■way and Astor place to board a car. One passenger who boarded the car on the south side testified that he saw the plaintiff approach the car and attempt to board it on the south side; that at that time-, the parallel bar had been raised, but the step had not been lowered j. that as the plaintiff attempted to board the car the conductor-lowered the step, and as the.step fell it struck the plaintiff on the. knee. The plaintiff testified that he waited for this. car.; that the. passengers began to “ pour out and passengers began to pour in; ” that “ there were people getting in and being seated ; ” that he then, took hold of the two side bars and was just ready to step in- when something hit him on the knee and he fell; that he had been in the. habit of changing cars at this place for several years, and that tli& rule was to put the step down for the passengers to step on; that he knew that when the car stopped the step would come down for the passengers to step on, in order to get into the car, but that he-[51]*51considered that the step was down ; that he was looking at the side bar and did not 'look to see whether the step was down or not. The accident thus resulted from the plaintiff’s attempt to board the car before the step had been lowered, which would have enabled him to board it in safety. He knew that the step had to be lowered before the car could proceed uptown. He assumed that it had been lowered because the bar was raised, but there was nothing to justify that assumption. There was no invitation to the passengers to board the car by the employee's of the defendant, and nothing».to justify the plaintiff in assuming that the change had been made which he knew had to be made. There is nothing to show that the conductor, while attending to his duty in lowering this step and raising the bar on one side of the car, saw that the plaintiff was in a position in which he could be injured by the lowering of the step, and the evidence is that the whole occurrence — the arrival of the car from uptown, the change in these bars and steps, the rush of the passengers to board the car — all took but a very few moments, and this would seem to be a case in which the accident was caused by the act of the plaintiff in attempting to board the car before it was in such a condition that passengers could safely board it. The plaintiff took the risk of an injury incident to the condition of the car when he attempted to board it. He acted upon the assumption that the step was down, without making any investigation as to its actual condition, and without waiting for an invitation from the conductor, with knowledge of the fact that this change in the fixtures of the car was necessary before the car could proceed on its trip uptown. The fact that other passengers rushed to board the car was not sufficient to justify the plaintiff in assuming that the car was in a condition that would enable him to board it in safety ; and I do not think that we are justified in holding the defendant liable for an injury which resulted from the plaintiff’s attempting to board the car before the necessary changes had been made, which he knew had to be made, when an inspection would have disclosed the fact that the car was not ready for passengers to enter from the side from which the plaintiff attempted to enter it.
I also think that it was error to admit the testimony as to the permanent character of the injury and to allow the jury to include in.their verdict the damages caused by such permanent injury. [52]*52The complaint alleged that by reason of negligence of the defendant and its agents or servants the plaintiff received a fracture of the knee cap of the right leg, which injury disabled the plaintiff from attending to his business and 'confined him to his house for the period of four months, to the plaintiff’s damage of $15,000. There is no allegation that the injury was continuing; that it was permament or that future damage would result. The. allegation of damage is confined to the past effect of the injury. Upon the examination of Dr. Tuttle he was asked: “ From your knowledge of the wound and the operation, will his (the plaintiff’s) injury be permanent or temporary ? ” That question was objected to as not within the pleading, and after an intimation that there was doubt as to the competency of the testimony the court said : “ If you are willing to take the risk of it I will allow Dr. Tuttle to swear,” to • which.counsel for the plaintiff replied, “We are.” The question was then changed so that the witness was asked, “ What will be the probable result of this injury to the. plaintiff \ ” This was objected to as incompetent, immaterial, irrelevant and not pleaded, which objection was overruled, to which the defendant excepted. The answer was: “ The loss of motion in the knee joint, with stiffness and inability to walk without a limp, or to use the knee in the normal way.” In submitting .the case to the jury the learned trial judge, upon the question of damages, charged “ it is entirely within your province to award to Mr. Clark whatever sum, in your judgment, will be a fair and reasonable compensation to him for the pain and suffering which he endured during his immediate illness, and for the future results to him of these occurrences; ” and com- • menting upon Dr. Tuttle’s testimony the court said: “ Dr. Tuttle has described to you as. to how the patella or knee cap was fractured, how he treated it, that he made six or seven visits, I think, and that in his opinion the result of this injury is a stiffening of the right leg, due to stiffness at the knee joint, which loss of- motion will) in his opinion, be permanent.” At the end of the charge, counsel for the defendant excepted to that part “ of your Honor’s charge referring to the awarding of damages for future results of this accident to the plaintiff.” This exception certainly was broad enough to cover the charge of the court that the jury was entitled to consider, in fixing the amount of damage, the fact that there was [53]*53evidence to show that this injury would be permanent, or that the plaintiff would in the future suffer from the injury. There was no evidence in the case that a fracture of the patella would necessarily cause a permanent injury, or that the probable result of such a fracture would be a permanent injury to the knee. Dr. Tuttle had .testified that in this particular case the knee would be permanently stiffened, but the condition was not such as in the case of a loss of an arm or a leg or an eye, where a permanent impairment would necessarily result. In the case of the breakage of one of the bones of the body, it is possible that a permanent disability would follow, but that is by no means the probable result of a simple fracture.
The question as to the requirement of pleading special damages in actions of this character has been discussed in several late cases in the Court of Appeals, and we think the rule as now established requires that where it is sought to recover for personal injuries in ■a case where the permanent condition is the natural, but not the necessary, result of an injury, the fact that the injury is permanent, and that damages will flow in the future from the result of the accident, must be pleaded.
In Gumb v. Twenty-third Street R. Co. (114 N. Y. 411) it was held that “ when a plaintiff alleges that his person has been injured and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury (which are called general damages) under a general allegation that damages were sustained; but if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury (which are called special damages), he must allege the special damages which he seeks to recover.” (See, also, Uransky v. D. D., E. B. & B. R. R. Co., 118 N. Y. 304.) In Geoghegan v. Third Ave. R. R. Co. (51 App. Div. 369) the presiding justice said: “.The exception to the evidence in regard to the permanent injury to the eye seems to be of a more serious character. There was nothing in the complaint which called attention to an injury of that ■kind. It was clearly in the nature of special damages; and the rule has been recently reiterated in the Court of Appeals that unless the injuries for which damages are sought to be recovered necessarily and immediately result from those described in the complaint, they must be specially alleged as special damages or a recovery cannot [54]*54be had for such injuries * * * . This rule of pleading gives a clear and unmistakable guide to the court in the admission of proof, and to the. defendant in his preparation for trial. Injuries which inevitably result from those described in the complaint, and which the defendant must know from the allegations of the complaint had been suffered, may be recovered for under the general allegations. But where the injury is of a character which does not necessarily result from that described in the complaint, then the defendant has no reason to expect proof of any such unsuspected injury upon the trial.”
The plaintiff relies np>on the case of Ehrgott v. Mayor (96 N. Y. 264). In ' that case the allegations of the complaint were' held sufficient to prove that the injury would be permanent, but the .complaint alleged that the plaintiff suffered great bodily injury; that he became and still continues "to be sick, sore and disabled; that he was obliged to spend large sums in attempting to cure himself, and was prevented for a long time from attending to liis business,, and that he was otherwise injured to his damage $25,000 ; and it was liéld that these allegations were sufficient to authorize proof of any bodily injury resulting from the accident-. That if the defendant desired that they should be more definite, it could have moved to have them made more specific, or for a bill of particulars. It will be noticed that the general bodily injuries, for which the plaintiff sought to recover damages were alleged to still continué, at the time of the commencement of the action. The allegations in that complaint were not, as in this, confined to a period prior to the commencement Of the action. There is no allegation in the coniplaint in this action that the injuries for which the plaintiff sought to recover continued when the action was commenced, nor is there any allegation or proof that there necessarily resulted from a fracture of the patella a. permanent injury ; and the court cannot take judicial notice of the fact that the necessary result of a fracture of the patella-is a permanent injury. In "an action of this kind w.etliink it but fair to the defendant that if the plaintiff seeks to recover for a permanent injury, he should allege that the injury caused by. the accident was of a permanent character. The consequences of such ah injury are much more serious than that of one" from which there has been a complete recovery. The defendant is given the [55]*55right to require a physical examination of the plaintiff; and while such an examination might be unnecessary where there is no claim made that an injury is permanent, it ivould be most important to •enable a defendant to meet the plaintiff’s proof when it is alleged to be of a permanent character.
The judgment and order should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien •and Hatch, JJ., dissented.