Taft v. Brooklyn Heights Railroad , 35 N.Y.S. 1042 ( 1895 )

O.sborne, J.

Action to recover damages for injuries to. plaintiff’s intestate which, it is claimed, resulted in.'his death.

From the evidence it appeared that deceased was, 911 the-10th day of May, 1893, a passenger riding on the front platform of one of defendant’s .cars going along Throop avenue; that when the car came' to Gwinnett street it was moving ■very rapidly, and there took amop.en switch which caused, it to turn into Gwinnett street, and to jump the track, and, travel', some distance over the stones, the effect of which was .to . throw deceased violently to -the' ground. He was cut and bruised about the head, and -complained of a -pain in the lower part of the abdomen, and a mark of a bruise was subsequently discovered there. Fifteen days after the accident peritonitis developed and caused his death, and it is claimed on behalf of the plaintiff that this peritonitis was the result of, and due to,. the injuries deceased received when thrown from the car.

Plaintiff had a verdict, and this appeal is taken from the judgment thereon and the order denying a motion for a new trial.

The learned counsel for the appellant contends that the motion to dismiss the complaint, made at the close of plaintiff’s case and renewed at the close of the testimony, should have been granted, and that it was error to deny the same.

This motion was based mainly on the ground that there was no proof of the absence of contributory negligence on the part of deceased, and also that there was no proof that the death of plaintiff’s intestate was due to the injuries received, but that, on the contrary, the evidence showed that such death was due to an independent cause for which defendant was not liable. i

We think that the circumstances disclosed by the evidence were of such a character that it might be fairly and reasonably inferred that deceased was free* from contributory negligence at the time he was thrown from defendant’s car. The jumping of the switch by the car while going at a high rate of speed,- so that it was dragged some ten or fifteen feet over the stones, and, in part, thrown from the track before it was stopped, was certainly a most unusual incident, and the fact that deceased was thereby thrown from the cay to the ground would not seem to be incompatible with the exercise of due care by the deceased. We think it was a question for the jury to determine, and the learned trial judge, in his charge to the jury, fairly laid down the law on that question, as well as the risks and dangers that the deceased assumed in riding on the front platform of the car.

As to the question whether the death of plaintiff’s intestate was due to and the result of the injuries he received when throw;! from the car, that also ^became,' on -all the evidence,.'& question.for the jury, and it was. left for them to .determine.. The attending physician, a. physician called in consultation and an-expert physician were called on behalf of the plaintiff,, and they all testified that death resulted from peritonitis which was the result of the injuries. The physician who made the post mortem examination, and- two other physicians as experts were called on behalf of defendant, and they all ! testified that the peritonitis was not due to or the result of the injuries, but was attributable to natural causes. Amid such a conflict of testimony there was no other course left for the learned trial judge, but to submit this question to the jury. Lyons v. Second Ave. R. R. Co., 35 N. Y. Supp. 372.

Our attention is' called to two exceptions in the case. The attending physician had testified that, in his opinion,-the death of plaintiff’s intestate was due to peritonitis resulting from the injuries received, and he gave the reasons which induced him to adopt .that opinion, On cross-examination- the witness admitted that he had never had or read of .a case where traumatic peritonitis developed fifteen days after the injury,, as .the result thereof; that he had read of one case where peritonitis developed nine or ten or- twelve days after the accident, and that his _ opinion in the present case was based, .in .pait,'on reading, of the case above mentioned, and also on the conditions- surrounding the case of the deceased. Thereupon the learned counsel for the appellant moved to strike out.all "the testimony of the witness in regard to his opinion that this, peritonitis came from the in jury,, on-the ground that it'had. no basis, either by the actual experience of the witness or by any-reading, and to the denial., of-the motion counsel excepted." We are of the opinion that this exception was not well taken: The witness,-on his direct examination, had testified-what, to a reasonable -certainty,.caused the.death of plaintiff’s intestate,, and given his reasons- therefor. The office of cross-examinartion was to dissect the reasons for that opinion, and to show, if -possible, that’ those reasons were insufficient, or- had -no' reliable foundation, and, therefore, that the witness’ testimony should not weigh with the jury. Both the direct and cross-examination were before the jury, and constituted a legitimate subject of discussion in the summing up of counsel, and it was for the jury to weigh it, and to determine what, if any, reliance should be'placed upon it. We think it would be a usurpation of the powers o'f the jury for the trial judge to determine whether a witness had or had not maintained his ground on the cross-examination, and, if the trial judge concluded that he had not, to strike out that witness’ testimony.

The learned counsel for the appellant excepted to the refusal of the court to strike out all testimony of the expert physician then under examination in regard to adhesions, and also in regard to an abscess, on the ground that there was no testimony in the case as to adhesions or an abscess. These exceptions are not well founded. The witness had already testified that in all cases of peritonitis adhesions were formed. ■ A hypothetical question involving matters in evidence was put to the witness, and he was asked to tell, if he could, the cause of gas being found in the right thigh of the patient during the last days of his life, and of the perforation of the intestine at the seat of the vermiform appendix. In answering these questions, the expert proceeded to account for the presence of gas in the right thigh of the patient, and also for the perforation of the intestine, and, in so doing, he had, of course, to draw upon his own knowledge and experience. He laid it down as a. general proposition that adhesions are always present in peritonitis, and that such adhesions had in this case caused an abscess which, on breaking, produced the perforation of the intestine. and allowed the gas to escape into the thigh. We fail to see anything improper in the answer of the witness, that should require it to be stricken out. He had never seen the patient, but a .given state of facts was propounded and the witness was asked, if he could, to account for certain results. This he proceeded to do according to his professional knowledge and experience. If the answer introduced elements or incidents not previously in evidence, that constituted no objection to the answer. To ask a witness, as an expert, "to account, if he could, for certain'results, and then to confine him in his answer to those matters" only which were already in evidence, would, it seems to its, present a barrier to ■a truthful answer to .the question. ;

"' For the reasons above stated, we think' the -judgment and order denying motion for a new trial should be affirmed, with costs.

Clement, Ch.-'J., concurs.

Judgment and order affirmed, with costs.