Hurley v. New York & Brooklyn Brewing Co.

13 A.D. 167, 43 N.Y.S. 259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1897
• Status: Published

Opinion

Bradley, J.:

On the 19th day of December, 1893, the plaintiff’s intestate received an injury resulting from the collision of. the pole of the wagon of the defendant brewing company with the street car of the defendant railroad company in which she was a passenger. She died October 22, 1894. The charge made by the complaint is that her injury and death were caused by the negligence of both defendants., The complaint as against the defendant railroad company was dismissed at the trial and judgment entered accordingly, with costs. Upon a verdict against the other defendant for $3,000, judgment was also entered.

The first inquiry is whether or not the alleged negligence of the defendant brewing company was established by the evidence. Thei car, drawn by horses and crowded with school children on their way to school, was going south along Lorimer street in the city of Brooklyn. The plaintiff’s intestate) then sixteen years of age, was seated on the easterly or left side of the car. The defendant’s brewery premises were on the east side of Lorimer street and south side of Scholes street. From the south side of the latter street there is a wall in front of those premises, extending along Lorimer street fifty-seven feet, to an opening in it for a passageway into and from the defendant’s brewery premises. From this wall at the gateway to the north-bound track of the railroad the distance was twenty-four feet and five and a half inches, and thirty-two feet one and a half inches to the southern-bound track upon which the car was moving. As the car was at Scholes street the driver of the defendant’s beer wagon was proceeding to come out of this gateway, and when the car was about opposite that place the pole of the wagon came i'n collision with the car, pierced the side of it and struck and injured Miss Hurley. The wagon was a heavy one, weighing nearly two tons, loaded with four and a half tons of beer in casks. There was a descent in the grade from the gateway into Lorimer street. Although there is some conflict in the evidence as to the manner in which the horses were driven into the street, the conclusion was permitted that they were driven at a rapid gait. This may be deemed an important fact bearing upon the question of negligence. The evidence on the pai’t of the defendant is that, while going into the street on this occasion and before the collision, the ring of the .pole chain attached to the harness of the off-side horse broke, thus reducing the means of controlling the movement of the wagon to the remaining pole chain connected with the harness of the other horse,, and that this was insufficient to enable the driver to avoid the contact. If the charge of negligence of the defendant was dependent' solely upon the fact that this ring of the pole chain gave way, there would be no reasonable support for such charge, as it does not appear that the defendant was chargeable with knowledge that the ring was defective, if it was so. There is some evidence tending to prove?. although not very satisfactory, that the pole chain ring did not break until the pole of the wagon struck or penetrated the car. It appears, that the length of the wagon — truck, as it is called — was over thirteen feet, and that of the pole ten feet and six inches, making both over twenty-three and a half feet in length. It may be observed that the outside of the gutter in Lorimer street is about fifteen feet from the defendant’s wall, which evidently is the reason for the statement of the driver that, in going from the gateway and turning-this truck into Lorimer street, the horses would have to go-to the south-bound track of this railroad. Without first seeing or knowing that the way was clear to do so, it would seem to have been anací of negligence on the part of the defendant to drive this truck,, loaded as it was, with the speed before mentioned, down into the street, where cars carrying passengers were liable to be passing on the railroad. While none can be denied the use of a street for the purpose of traveling upon it, the duty of all is reciprocal to exercise such care as not unnecessarily to inflict injury upon or curtail .the rights of those who seek to use it for such purpose. The conclusion was warranted by the evidence that the defendant’s driver failed to exercise the care required of him, and that the injury sustained by the plaintiff’s intestate was the consequence of such negligence on his part.

There can be no imputation of contributory negligence on her part.

The further question arises whether or not the death of the plaintiff’s intestate was caused by such negligence of the defendant. (Code Civ. Proc. § 1902.) In view of the nature of the injury received • by her, and of the fact that she continued to live ten months after the accident, the' question is, in some sense, one of medical science, and its determination is largely dependent upon evidence of that character. While the time intervening between that when the injury was received and the death is entitled to consideration, it is not controlling on the subject of inquiry whether the blow received by the girl was the proximate cause of her death. Itmust be assumed from the evidence that she was in good health up to-that time and that thereafter she. was not so. The apparent effect when she reached home of the blow she received from the truck pole was that her left side was bruised and red from a little below her lower rib to her shoulder blade. This was followed by swelling ; afterwards by pleurisy, succeeded by consumption, from which she died. Her medical attendants describe the early effect of the violence upon her and trace the physical conditions which followed down to the time of her death, and by their evidence attribute it to the injury received ten months before. It is not sufficient that the plaintiff’s intestate may not have died when she did die if the injury had not been received by her. Nor is it necessary to the proximate cause of the act which produced the injury that different physical conditions followed, resulting in' death, if there was an unbroken connection between it and them. In other words, if there ivas no intervening efficient independent cause to which the death may have been attributed the effect of death was proximate to the violence as the cause. (Pollett v. Long, 56 N. Y. 200; Ehrgott v. Mayor, etc., 96 id. 264; Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S. 469.)

Upon this subject, as applied to the present case, the evidence of the doctors radically differed. The medical witnesses called on the part of the plaintiff testified to the effect that the consumption which resulted'in the death of Miss Hurley could have been, and in their opinion was, the result of and produced by the blow she received. And by this evidence they traced the cause from the violence by a continuous succession of physical conditions and without any intervening independent cause to her death as the effect of such blow. On the other hand, the medical witnesses on the part of the defendant testified to the contrary, and they gave evidence tending to support their views that the death of the plaintiff’s intestate was not caused by the injury she received in the car, and that the consumption which resulted, in her death not only was not, but' could not have been, caused by such violence and injury. The view derived from a careful examination of their testimony is that the question arising upon the conflicting evidence was fairly one of fact for the jury, and that they were permitted to find that the act of negligence complained of was the proximate cause of the death of the plaintiff’s intestate.

Our attention is called to the case of Weber v. Third Avenue R. R. Co. (12 App. Div. 512), recently decided by the Appellate Division of the first department. There the plaintiff’s intestate, Weber, received a severe injury by a blow upon his knee in October, 1894, and died in June, 1895. The action to recover damages was founded upon the charge that liis’death was caused by that blow. The recovery by the plaintiff ivas reversed. His death resulted from consumption ; and the question upon the .review, as .there stated, was whether “ 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,” ■and the court, in the opinion delivered by Mr. Justice Rumsey, added: “ It. is sufficient if she establishes that the injury set in motion other causes which produced the disease and the death, but which,, in the absence of this injury, would not have produced it.” In- that case the theory that consumption was caused by the violence was founded upon the existence of tuberculosis in the injured knee. The difficulty, as the court held on review, was that the assumed fact of the tubercular condition of’the knee was unproved upon the trial, and that for such reason the connection of the original injury as the cause with the death as its effect essential to support the ■action did not appear. The evidence upon, which the plaintiff sought to show that tubercles were in the knee’ of her intestate was by opinion founded somewhat upon the presumed fact that pus was there, although it appeared that the existence of pus was insufficient to support the conclusion of the presence of tuberculosis in the knee. That difficulty does not necessarily exist in the •present case. Succeeding the injury which was received by Miss Hurley while in her menstrual period her physical derangement was such that she never had another. The evidence of her attending physician, who had known her for years before, was to the effect that he made examination of her on the day of the accident; that he found a large bruise on her left side extending from about an inch below the lower rib clear to the lower angle of the shoulder, and it was puffed up considerably at the lower portion of the. dorsal ■division of the spine; that- three days afterwards she began to complain of pains along the. ribs on the left side, and he detected that there was fluid in the chest and the condition pleurisy there; that a few days later he detected adhesions from the left side due to pleurisy on that side of the chest; on the back of the chest under the shoulder blades and under the axilla ; that this pleurisy started about two days after the injury, sharp pain accompanied deep breathing, and that there were friction sounds of the covering’ of the lungs scraping up against the covering of the wall of the chest which indicated inflamed condition of the pleura, and then followed an exudation of water into the chest; that this condition existed in February; that from a time shortly after the injury she had a cough whenever she took a deep breath; that she was losing strength through January and had a hacking cough developed early in February, and she raised sputum of muco-purulent character and that consumption was also developed at that time. From those and some further facts descriptive of the condition, which the evidence tended to prove, the testimony of the medical witnesses on the part of the plaintiff was to the effect that the conditions accompanying and following each other in the case of Hiss Hurley showed that they, including consumption and her death, were the conditions from effect continuously operating of the blow and injury she received about the chest. In this respect the case is distinguishable from that of Weber. The attending physician, who knew the girl and knew the condition of her health prior to the accident, which was good, says that he thought it not possible that she had any tubercular germs for any time before the injury, and that at the time he examined her on the day it occurred he found.no trouble in the chest outside of the contusion, which contusion he knew was not from disease, but was from violence. While it may be true that the reduction of the vitality of a person renders his system more sus.ceptible to tubercular bacillus and consumption as the consequence because there is a want of power to resist it, and although it is on such theory that the disease of the girl is accounted for by some of the witnesses, the conclusion was warranted by the-evidence óf other witnesses (which it may be assumed the jury adopted) that the final condition which resulted in her death followed in a continuous course of afflictions from, and as the effect of, the violence, and that it was the original or proximate cause.

The defendant’s counsel took some exception to the rulings of.the court in the reception of evidence of physicians called for by hypothetical questions. None of those exceptions were well taken. The answer to the inquiry whether, upon the assumed state of facts, the blow could produce consumption, was not speculative in such sense as to render it incompetent. (Turner v. City of Newburgh, 109 N. Y. 301; Griswold v. R. R. Co., 44 Hun, 236; 115 N. Y. 61.)

in those cases, that of Strohm v. R. R. Co. (96 N. Y. 305) is distinguished,, as it related to evidence offered to prove by way of opinion the possible consequences to follow in the future from an existing condition. Such evidence was held incompetent in the Strohm case, and that of Wallace v. Vacuum Oil Co. (128 N. Y. 579) is to the same effect. The hypothetical question above referred to was, however, preliminary to another, put to the same witnesses, founded on the same state of facts, whether such result which had occurred was- reasonbly certain, which was also,. answered in the affirmative. The answer to the former question was included in that to the latter, ^and, therefore^ the matter of its admissibility requires no consideration. No error is seen in any of the rulings to which exception was taken by the defendant brewing company. The question whether reasonable precaution oh the part of the defendant required it to supply a brake for the truck was properly treated as one for the jury. Brakes were in use on some wagons of that character employed to convey heavy loads as was this one, and that a brake on the truck would.have been a prudent provision was somewhat indicated b.y the occurrence in question.

The appeal taken from the judgment entered upon the dismissal. of the complaint as to the defendant railroad company requires some consideration. The. evidence tends to prove that the car was "moving rapidly on a descending grade; that, when it was sixty or seventy feet from the gateway, the horses drawing the beef wagon appeared to the view of persons on the car and were going on a trot ■down into the street, and that the rapid movement of the car was not slacked until the collision took place. The counsel for the railroad company assumes in his statement of. facts that the driver of the truck first turned the horses to the left towards Meserole street and suddenly thereafter reined them to the right, thus causing the collision, and thereupon asserts that, in view of the distance from the wall of the brewery premises to the track of the railroad, the driver ■of the car, until that sudden turn to the right, made too late to avoid the collision, could reasonably suppose that the brewery team would keep' away from the track of the railroad. Whether or not the driver of the brewery wagon did so turn his horses to the left and then to the right, or came straight down the incline into the street, or turned to the right at all, were disputed questions of fact upon the evidence. At all events, the conclusion was required that the collision occurred about opposite the gateway. This took place in the daytime, and it may, upon the evidence, be assumed that the movement of the truck into the street may have been and was seen from the cai1 in time to enable those having charge of its operation to have reduced its speed and, if deemed necessary, stayed its movement and thus avoided the accident. It is very likely that the driver of the car did not suppose he was approaching a collision. But it cannot be said, as matter of law, that there was no occasion for him to apprehend the possibility that the wagon, going with such rapidity towards the track, might not turn before reaching it. He could not justify the taking of any chances involving considerations of danger to the passengers if it could be avoided without.

The responsibility of a common carrier of passengers is such as to require a high degree of care for their safety, so far as it is dependent upon the means employed and upon those engaged in that business. And the discharge of the duty requires ■ of such a carrier the exercise of great care and vigilance, all that human foresight may suggest to secure the safety of passengers. (Palmer v. D. & H. C. Co., 120 N. Y. 170, and cases there cited.)' In view of the circumstances furnished by the evidence, the question was presented as one of fact for the jury whether the defendant railroad company failed to exercise the care to which the plaintiff’s intestate, as its passenger, was entitled from it for her safety,, and if they so found the further question for their consideration would follow whether her injury was the consequence of such failure. (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Hill v. Ninth Ave. R. R. Co., 109 id. 239.) And, therefore, the dismissal of the complaint as to that defendant at the close of the evidence on the part of the plaintiff was error.

It is, however, urged by counsel that the plaintiff is not entitled to a reversal- of the judgment against him, because his appeal is inconsistent with the judgment entered against the brewing company, since the action was brought against both defendants jointly. If the fact existed and was made to appear that the plaintiff had collected or satisfied the judgment against the brewing company that contention would be supported, as the plaintiff could have, the satisfaction of recovery or claim against one of the defendants only. Such is the' effect of the cases cited by the counsel for the railroad company. (Knapp v. Brown, 45 N. Y. 207; Alexander v. Alexander, 104 id. 643.) But the recovery of a judgment against one of two joint wrongdoers is, until it is paid or satisfied, no bar to the prosecution of an action for the same cause against the other one of them. And the situation in that respect, and for such purposes, is rendered no different by the fact that they are joined in the same action, when they have become severed for the purposes of the trial, or when questions arise upon the trial for review as to one of them only. ' Then the legal controversy may proceed as to the one defendant, although, as between the plaintiff and the other defendant, final judgment has been entered. No reason, therefore, appears for the denial to the plaintiff of the right to review the recovery by the defendant railroad conqiany against him.

It follows that the judgment against the defendant brewing company should be affirmed, and that the judgment recovered by the defendant railroad company should be reversed and a new trial granted as to that defendant,- costs to abide the event.

All concurred, except Goodrich, P. J., hot sitting.

Judgment and order unanimously affirmed, with costs, on the appeal of the defendant, The New York and Brooklyn Brewing' Company; on the appeal of the plaintiff, as against the defendant, The Brooklyn Heights Railroad Company, judgment reversed and new trial granted, costs to abide the event.