Swenson v. Brooklyn Heights Railroad , 36 N.Y.S. 445 ( 1895 )

Osborne, J.

Action to recover damages for injuries to plaintiff, a child eight years old,.caused through defendant’s negligence. On the trial defendant’s negligence was admitted,, and also plaintiff’s freedom from contributory negligence, so-that the only question litigated was the extent of plaintiff’s injuries.

Plaintiff had a verdict for $1,000j and from the judgment entered thereon and the order denying motion for a new trial defendant appeals.

On the trial an expert witness, called on behalf of plaintiff to give evidence as to the extent of plaintiff’s injuries, having testified, inter alia, that the plaintiff had chorea, was asked the following question : “ Q. .From -your examination, state the treatment and the course of chorea in her (plaintiff’s) case, what it will be, the. best way you- can.” -Defendant’s counsel: I Object to the question as irrelevant, immaterial and incompetent, and that there is no connection shown between the injury in this case and the chorea so called, and your 1 honor will note my exception. The court: The exception will be noted. Answer the. question: Defendant’s counsel: How Can he tell the course of something that has not happened? The court:. What -will be the course*, from his knowledge *as an expert, of the disease? Defendant’s counsel■: I object to that on the . ground that an expert is incompetent, to testify to the future course of the disease. The witness: The disease, chorea, and the allied diseases, of which there are several of • the same kind, áre caused by irritation of the brain. This irritation may be the result of injuries to the head, of shock, Of fright, or a poisoned condition of the brain resulting from different fevers; from the poison of typhoid, or diphtheria or scarlet fever,, or diseases of that kind. When the irritation has reached a certain point, then these motions begin, usually in the hands, and spread to different parts of the body, and, in time, may become general, so that all the muscles of the body, the arms, legs and face are in a state of motion. The effect of this irritation also injures the brain. It is not at all uncommon to see cases of. chorea who are stupid and almost, on the verge of idiocy. Now, in regard to the ultimate results of the disease, that is, as to its being able to be cured, we usually find that simple chorea, not due to any organic injury of the brain, is quite curable; but where we have to deal with an organic disease of the brain, where injuries of the brain have occurred which cannot be cured by any means, there the chorea persists and remains witli the jiatient; they cannot get rid of it and it lasts for life with a progressive mental degeneration as well as the muscular movements. Defendant's counsel: I move to strike out in regard to chorea arising .from in jury to the brain organically, as having no connection with this case whatever, and because his testimony is not confined to results in this case; he is giving general lectures.” The motion was denied, and defendant’s counsel excepted.

We are of the opinion that the motion to strike out should have been granted, and that the exception to the refusal so to do was well taken.

The question put by plaintiff’s counsel, and as modified or amended by the court, substantially called upon the witness to state, from his knowledge as an expert, the treatment and what would be the course of chorea in plaintiff’s case. We think that the question itself was a proper one to put, but we look in vain in the .answer for the slightest allusion to the plaintiff’s case to which the question was addressed. The witness seems to have entered into a general discussion of the disease known as chorea, the various causes producing it, and some of the possible ultimate results thereof; nowhere. does the witness state, or intimate or exjiress an opinion as to what the course of the disease would be in plaintiff’s case, or the probability or improbability of her recovery. On the contráry, the witness’ answer was confined to the possible effects attending the progress of the disease ill general, and its probable duration, and the results that might ensue to some-person or other afflicted with the disease, and those results dependent on the producing cause of the disease.

We cannot say that this evidence did not prejudice the defendant, or influence the amount of the verdict. It improperly placed before the. jury results that might ensue, future consequences that were possible, and it would be' most natural that the jury, in estimating the damage to plaintiff, should take these elements into consideration in fixing the ■ amount of the verdict. Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305 ; Tozer v. N. Y. Central & Hudson River R. R. Co., 105 id. 617.

This conclusion renders it unnecessary to consider any other exception in the case.

Eor the reasons stated, we think that the judgment and order denying motion for a new trial should be reversed, and a new trial ordered, with costs to abide the event.

Clement, Cli. J.j concurs.

'. Judgment and order reversed and new trial ordered, with costs to abide event.