Fenig v. North Jersey Street Railway Co. , 64 N.J.L. 715 ( 1900 )

The opinion of the court was delivered by

Voorhees, J.

This was an action brought by the plaintiff below to recover damages for personal injury suffered by him from being violently thrown to the ground by the sudden and negligent starting of the car of the defendant company,, while the plaintiff was in the act of alighting from said caiv The cause was tried before Judge Child at the Essex Circuit-Court and resulted in a verdict of $1,000 for the plaintiff.

There are two assignments of error, the first that the-learned judge refused to order a verdict for the defendant at’ the end of the defendant’s case. The plaintiff testified that he was a passenger on the defendant’s car; that he signaled the conductor, to stop the car; that the car was stopped in response to his signal, and that as he was in the act of alighting, one foot being on the ground and the other on the car,, the conductor signaled to start, and the car started so suddenly ■that he was thrown violently to the ground and suffered serious injuries, from the effect of which he was confined to his house for some weeks, and- from which injuries he had not then recovered. No other witness testified as to the ■cause or manner of the accident, and it is apparent that the learned judge did right in allowing the case to go to a jury, .and in not ordering a verdict for the defendant.

The other assignment of error was to the admission of a hypothetical question, asked of a physician who appeared upon the stand as an expert in behalf of the plaintiff, upon the ground that the question contained statements of fact not proved in the case. It is unnecessary to pass upon this assignment, as the physician’s answer clearly showed that it was based upon facts ascertained by him from a personal examination of the plaintiff, and he distinctly asserted that he •founded his answer upon his own examination ; and further, his answer to the question could not have affected or influenced the verdict.

The judgment should be affirmed.

For affirmance—Magie (Chancellor), Deptje (Chief Justice), Van Syokel, Dixon, Garrison, LippIncott, Gummere, Ludlow, - Collins, Bogert, Hendrickson, Adams, Vredenburgh, Voorhees. 14.

For reversal—None.