Hess v. Metropolitan Street Railway Co.

27 Misc. 823, 57 N.Y.S. 222

• Court: City of New York Municipal Court
• Decided: April 15, 1899
• Status: Published

Opinion

Hascall, J.

Under the abundant and controlling authority of Pierce v. Met. St. Railway Co., 21 App. Div. 427-432, it is manifest that the verdict complained of herein must be set aside. In that case, exactly as in the one at bar, the plaintiff had no evidence to corroborate her on the question of defendant’s negligence; but, when plaintiff rested, there was sufficient proof to carry the case to the jury. The defendant, in both cases, made out defenses by disinterested witnesses, so that it may not be said that only the conductor and gripman testified in the defendant’s behalf. The verdict was clearly against the weight of evidence.

We think that permitting the physician to testify, against objection, to the presence of bodily ills, not complained of in the pleading of the plaintiff, was error, also calling for a reversal. • This subjected the defendant to a surprise that it could not have guarded against, since it was not called upon to meet proof of other particulars of permanent injuries than those definitely stated in the complaint. Hergert v. Union Railway Co., 25 App. Div. 220.

Judgment and order appealed from reversed and new trial ordered, upon condition that defendant pay to plaintiff the costs and disbursements of the former trial. '

The appellant to have costs and disbursements of this appeal, to abide the event of the action.

McCarthy, J., concurs.

Judgment and order reversed, and new trial ordered, upon condition that defendant pay plaintiff costs and disbursements of former trial, with costs to appellant to abide event.