Kunstler v. Interurban Street Railway Co.

48 Misc. 655, 96 N.Y.S. 296

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 1, 1905
• Status: Published

Opinion

Per Curiam.

This action is brought to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant company. The plaintiff was riding a bicycle northward, on one of the tracks of defendant, when a northbound car struck the rear wheel of this bicycle and threw him to the pavement. The jury found a verdict in favor of the plaintiff and assessed the damages at $350. Defendant appeals.

There is sufficient evidence to support the finding of freedom from contributory negligence on the part of the plaintiff and negligence of the defendant. Rooks v. H., W. St. & P. F. R. R. Co., 10 App. Div. 98; Warren v. Union R. Co., 46 id. 517; Mapes v. Union R. Co., 56 id. 508. No grounds for reversal appear under this branch of the case. The plaintiff alleged in his complaint that he was injured in and upon his head, body, thighs, and arms; that his left thigh was severely cut and bruised and his back was severely wrenched and sprained. Upon the trial, plaintiff testified that he still complained of pain in the back. He was asked this question, viz.: “ Q. What is the present condition of your back ? ” Defendant’s counsel: “ I object on the ground that it is incompetent, irrelevant and immaterial, and too remote.” Objection overruled. Exception. “A. Very sore at times. It relieves for a while, and then shooting pains again.” Dr. Clarke was called on behalf of the plaintiff and swore that he examined the plaintiff’s back, limbs and entire body; that plaintiff complained of pain in the back, and that there seemed to be a limited amount of motion on flexion and extension both — that is, forward and backward. The doctor was allowed to state, over defendant’s objection, that the injuries he found were of a permanent character. This evidence probably had an important weight with the jury on the question of damages. The grounds of the objection to this testimony, as urged by defendant, were that it was too remote, was irrelevant and not connected with the injuries received at the time of the accident. Admitting it to be a fact that the plaintiff suffered from pains in the back and from a defective and limited amount of 'motion, backward and forward, subsequently to the accident, the record fails to disclose any evidence of the physical condition of the plaintiff in respect to his back previous to the accident. The evidence falls short of establishing the causal connection between the accident and the subsequent conditions above described. Had it appeared, as is probably the case, that the plaintiff was in good health and strength, entirely free from these abnormal conditions, prior to the accident, it might be said that sufficient facts appear to warrant the conclusion that the painful and defective condition of the back was due to the injuries received at the time of the accident. It seems to us that the absence of testimony as to the plaintiff’s previous condition rendered the admission of the opinion of the expert, that the condition of his back would be permanent, an error that calls for a reversal. There was no proved connection between these particular physical effects and the injury. The mere fact that they were manifested thereafter was not sufficient.

The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Present: Scott, Gilbeeslebve and MacLean, JJ.

Judgment and order reversed and new trial granted with ■costs to appellant to abide event.