Seifter v. . Brooklyn Heights R.R. Co.

On December 19, 1894, Pincus Seifter, the plaintiff's intestate, was riding and driving in a one-horse market wagon with a covered top, easterly on defendant's railroad tracks, on Myrtle avenue, in the borough of Brooklyn, when defendant's trolley car, also moving easterly upon the same tracks, came up from behind and struck the rear end of the wagon and threw Seifter out of the wagon, thereby causing a fracture of the fibula, or small bone of his left leg above his ankle. He received the ordinary treatment, but did not recover the use of his leg, and became greatly reduced in flesh and strength. He was in the hospital five weeks and then went home. In the latter part of April pneumonia developed, of which he died May 2, 1895, about four and a half months after the injury. The two principal questions upon the trial were, whether Seifter was free from contributory negligence, and whether the injury which he received upon the 19th of December, 1894, was the proximate cause of his death.

The defendant contends that there was no evidence for the jury upon the question whether the injury was the proximate cause of Seifter's death. In view of the want of unanimity in the affirmance by the Appellate Division, we are required by the exceptions to examine this question. There must be some evidence fairly tending to support the verdict. (Laidlaw v. Sage, 158 N.Y. 73.) The fracture was a simple one, making no outward rupture. When the patient came from the hospital, as both the physician and surgeon of the hospital testified, his leg at the point of fracture seemed to be doing well, and as his daughter testified, to be swelled, reddish like, and sore. He could not bear any weight upon it. Then about February 21, three weeks after he left the hospital, he had a swelling upon his thigh. Under treatment by the physician this disappeared in about a week. Shortly after three large lumps appeared in his groin, which were painful and inflamed. They remained until chills, symptoms of blood poisoning, appeared; then pneumonia followed and pus between the lung and chest wall; and then death about nine days after the pneumonia developed. The plaintiff undertook to prove that Seifter died of septic pneumonia, and there was evidence for the jury upon that question. The defendant contends that the evidence shows that he died of idiopathic or croupous pneumonia, but the verdict settles that question in favor of the plaintiff. Septic pneumonia seems to be produced by blood poisoning, while idiopathic pneumonia is not due to that cause. The plaintiff's theory is that the fracture of Seifter's leg produced septic poisoning, or such condition as did produce it; that the septic conditions produced the swelling in the thigh; afterwards the swelling in the groin; developing into septic poisoning which broke in the groin, passed upward to the lungs, and caused the septic pneumonia of which he died.

It is urged that the difficulty with this theory is that there is no evidence tending to show that septic conditions were produced by the fracture; that there is much evidence to the effect that the fracture was properly treated and was making fair progress toward recovery; that septic pneumonia may be caused by the inhalation of septic germs as well as by an unhealthy condition of the fracture; that the best that can be said of septic producing conditions at the fracture is, that instead of any testimony or opinion based upon any examination of the fracture, that they were there, they are supposed or conjectured to have been there, because the patient died of septic poisoning. Dr. Love, testifying in behalf of the plaintiff, said: Q. "In your judgment, was the inflammation in the thigh in your opinion connected with the fracture in the leg?" A. "In my opinion it was; yes." Q. "And how was it connected with the fracture in the leg?" A. "Because there must have been some cause for it, and there was no other cause ascertainable."

Other expert witnesses for the plaintiff upon hypothetical questions which embraced the facts as we have given them, testified that in their opinion the septic conditions resulting in death proceeded from the fracture as the point of origin. The substance of their evidence is that under the circumstances the fracture was the most probable of causes; that there must have been a cause, and the circumstances point to no other cause equally probable. We think this amounted to some evidence that the fracture was the cause. The fact that the fracture had not been examined with the view to find there sufficient symptoms to indicate this condition goes to the weight of the evidence, not to its utter absence.

We find the dead body of a man with what appears to be a bullet wound through his heart; we cannot find the bullet, or measure its exact caliber from the wound itself, but we find lying partly in the water near the dead body, a pistol bearing but indecisive indications of its recent discharge with a caliber somewhat approximating the size indicated by the wound. No witness heard or saw any discharge. No one can surely testify that it was ever loaded. Any other pistol or bullet slightly larger or smaller might have produced this wound, indeed it might possibly have been produced by some instrument other than a pistol, but there is no evidence that it was. We would agree that there was some evidence that the death wound was caused by this pistol. Now the evidence connecting the fracture with the patient's death is as equally direct. The doubt arises in both cases over the question whether either fracture or pistol was ever charged with destructive matter, but in each case we find, not in the fracture or pistol, but in the body of the deceased, such traces or symptoms of it as tend to support the inference that it must have been so charged. And this, we take it, is a fair test; whether the conditions as proven tend to show that the cause alleged must have been the true cause, not necessarily to the exclusion of all other possible causes, but tending to the moral conviction that this and not another was the producing cause. This recognizes, but avoids the objection that where the evidence points as well to another cause as to the cause alleged, the latter is not sufficiently supported. (Searles v. Manh. Ry. Co., 101 N.Y. 601;Taylor v. City of Yonkers, 105 N.Y. 209.) It removes the confusion of speculation and conjecture, and by at least its dust in the balance preponderates the scale in favor of the best supported contention. (Pauley v. Steam Gauge L. Co.,131 N.Y. 90, 99; Bond v. Smith, 113 N.Y. 378, 385.)

The verdict compels us to accept septic pneumonia as the cause of death. Let us assume that there are two causes of septic pneumonia, one, the inhalation of septic germs; the other, the paralyzed decaying matter on the edges of the fractured bone and in the bruised parts of its fleshy covering, or either, which the shocked vitality of the patient was unable to assimilate or cast out, and thus left it to fester and cause septic conditions — in other words, a blood poisoning mill. There is no evidence of the inhalation of septic germs, except such as it may be supposed all flesh is heir to, and generally thrives under; but there is evidence quite consistent with the establishment of the blood poisoning mill, very strongly confirmed by the accumulation of just the grist the mill would grind out. This seems to be evidence fairly tending to support the verdict, and not within reach of the rule as to conjecturing stated in Laidlaw v.Sage (supra). In that case it was clearly shown that Norcross' act was the proximate cause, and it was purely conjectural whether the defendant's act, if not excusable, co-operated with it. The alleged evidence of co-operation was that the two acts were nearly simultaneous, and of course, without more, the plaintiff had no case. If there had been no explosion, and the plaintiff had left the defendant's grasp badly wounded, the case would bear some resemblance to the one before us.

The conclusion indicated is not without support in similar cases. (Lyons v. Second Ave. R.R. Co., 89 Hun, 374; Ginna v. Second Ave. R.R. Co., 8 Hun, 494; affirmed, 67 N.Y. 596;Hurley v. N.Y. Brooklyn Brewing Co., 13 App. Div. 167.)

Upon the question of contributory negligence, it appeared that Seifter's wife was riding with him and she looked twice to the rear without observing any approaching car, the last time within half a block of the place of collision. It was in broad daylight, and the street was thronged with vehicles. The jury could find that Seifter was not negligent in relying upon his wife's vigilance, especially when his own care was in request in order to make progress forward. An exception was taken to the charge of the court in this respect. Seifter and his wife were riding in a wagon with a covered top. The court in speaking of the claim that Seifter was not in a position to make an observation of the approach of the car, said that. "The law simply requires that he exercise the care and prudence that an ordinarily prudent person would exercise under the circumstances, having in view the danger that a reasonably prudent person would apprehend might occur in consequence of the position in which he was in the street, and in view of the frequency with which cars were operated along that line. Of course, if he could not have observed the approach of the car, then he was under no legal requirement to make the observation. The law did not impose upon him the duty of performing an act which would be impossible. All that the law imposed upon him was to exercise the care that a prudent person would exercise, whether that would be to look or to listen or to take any other measures to ascertain the fact is left to the good sense and judgment of the jury. The law has not pointed out that he shall look or that he shall listen, but simply provides that he shall do the thing that a prudent person would do having regard for his own safety, in view of the dangers to be apprehended from the situation present."

Defendant's counsel said, "I wish to call your Honor's attention, by way of exception, to your statement in speaking of Mr. Seifter driving a wagon. Your Honor said that if he could not see the approach of the car, the law did not throw upon him the obligation — I except to that." Plaintiff's counsel then asked the court to charge upon that subject, "that the question for the jury is whether the deceased, by the use of reasonable diligence on his part, ought to have become cognizant of the approach of the car in time to have avoided the collision." To this the court responded: "Very well; I will modify it in that way, although I think it is the same in substance." Counsel for the defendant excepted to this remark of the court, but whether to the modification suggested by the plaintiff's counsel in which the court acquiesced, or to that portion of the remark in which the court expressed the opinion that the charge "is the same in substance" as had already been charged does not appear.

The Appellate Division held that the exception was too loosely taken to be available. Passing that question, we think the charge as first made was intended to be the same in substance as the modified charge adopted by the court, and that the jury could not have supposed that it was an instruction that if the plaintiff, because of his wagon cover, could not look behind, he was under no obligation to do so. If there was any doubt of this, we think the language adopted by the court sufficed to remove it.

Other errors are assigned, but we do not think they call for reversal.

The judgment should be affirmed, with costs.

O'BRIEN, HAIGHT and MARTIN, JJ., concur with PARKER, Ch. J.; BARTLETT and VANN, JJ., concur with LANDON, J.

Judgment reversed, etc.