Alberti v. New York, Lake Erie & Western Railroad , 50 N.Y. Sup. Ct. 421 ( 1887 )

Barnard, P. J.:

The evidence in this case shows an exception to the ordinary rule in respect to proof of negligence upon the part of the defendant which occasioned the injury. The plaintiff was a passenger in the defendant’s car for Jersey City, going west, on the 24th of July, 1885, and while traveling upon his journey he was suddenly injured. While the injury would not presumably have happened without some neglect, it is sufficient to prove the injury and call upon the defendant, which is a common carrier of passengers, to explain the cause of the accident. (Seybolt v. N. Y., L. E. and W. R. R., 95 N. Y., 562.)

The proof, however, is given as to what probably caused the injury. A door from a freight car, attached to a train going east, became detached and was cast against the passenger train. This car had been injured by a collision with the rear of a train standing on the track. The car in question was running down a grade and, in consequence of a' defective brake, could not be stopped. The shock was severe, and examination subsequent to the accident disclosed serious injury. The defendant’s servants saw the collision, but,, beyond fixing the brake, made no examination of the car. Under the strict rule of a carrier’s duty, this was a sufficient proof of neglect. The carrier was bound to examine the car to see if it was' injured, and thereby prevent danger therefrom.

The sole questions which remain are those arising upon the trial. The plaintiff was a young married man who was employed by a lumber firm as collector and salesman. He testified that he supported himself and his wife solely by his own earnings. Great stress is laid upon the exception taken by the defendant to the admission of this proof. It seems to be admissible for two reasons. In the first place the earning power of the plaintiff was an item of damage. He supported from his labor, solely, his wife and himself. This is proven to have realized over $1,000 a year. The earning power was not aided by other means. Again the defendant gave-testimony tending to show that the county physicians who attended him for his hurts were not specially well skilled in such phases of injury as resulted from the wounds received. It was proper to' show that the plaintiff used such means of repair and restoration as his circumstances permitted. The physician who attended the' plaintiff was sworn upon the trial. Upon being objected to, under 834, Code Civil Procedure, the attorney and counsel waived the provision of the section. This was sufficient. The section in question was for the protection of the patient. His case required the testimony of the witness, and in, all which relates to the management of the trial the, attorney represents and binds the client. (Mark v. City of Buffalo, 87 N. Y., 185.)

The photograph was proven to be correct. The enlargement, by reason of the camera being placed near the subject, was explained, and that the representation in respect to the drawing up of the limbs was a, correct one. The evidence carries it within the case of Cowley v. The People (83 N. Y., 464). The medical testimony objected to was properly received. Q. If you can speak with reasonable certainty you may state. A. I can only give you the probability, from the history of other similar cases. You may do that. * * * “I should expect he might live several vears in very much the same condition we see him to-day. I don’t think his condition will ever improve.” Another witness is asked for his opinion as to the natural and ordinary cause of the disease, replied that it might be for years that the plaintiff would remain in the present condition, but that in his opinion he would never be better. These questions seem to be based upon the case of Strohm v. New York, Lake Erie and Western Railroad Company (96 N. Y., 305). Especially was this so when there was evidence in the case given by witnesses for the defendant, that the injury was trivial and would be soon repaired.

The damages were not excessive, assuming the facts which have been found by the jury. The age of plaintiff is thirty years. He was a healthy young man before the injury. He was well educated, having been graduated from Cornell University in 1879. He was married, and both himself and wife depended for support upon his labor. He was so totally destroyed that he can do nothing. His legs have drawn up, and so they must remain until he dies. He is helpless, and may be suffering in body and mind for some years, but he will never improve, physically. If any case can be proven to justify a verdict for $25,000, this seems to be such a one. A large verdict was sustained by the Court of Appeals for an injury somewhat similar in its results.

The judgment should, therefore, be affirmed with costs.

Dykman and Pratt, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.