Gumb v. Twenty-Third Street Railway Co.

At the intersection of Sixth avenue and Twenty-third street the tracks of the defendant and of the Sixth Avenue Railroad cross each other nearly at right angles. On February 12, 1883, a Sixth avenue car was moving north on the east track of that line, closely followed (from Carmine street to Twenty-third street) by a butcher's wagon, with its wheels on the rails, drawn by one horse, driven by the plaintiff, who owned horse and wagon. This car stopped to receive and discharge passengers at the north crosswalk of Twenty-third street. The plaintiff stopped his horse immediately behind the car. As this occurred one of defendant's cars approached from the west on the north track of its line, collided with the hind wheels of plaintiff's wagon, overturned, broke it, and, as it is asserted, injured the plaintiff's left leg. The plaintiff testified that the head of his horse was close to the rear end of the Sixth avenue car, with the hind wheels of his wagon standing midway between the rails of the north track of defendant's line, and that defendant's car was driven against the hind end of his wagon. Foley, plaintiff's witness, testified that the rims of the hind wheels stood over the north rail of the north track. Edwards, defendant's driver, testified that the hind wheels stood far enough north of the north rail to have permitted the car to pass without touching; but that as the car was passing the plaintiff's wagon was backed in the way of the car. This and the rate of speed of the defendant's car were the principal facts in dispute. The plaintiff testified that he saw the defendant's car approaching rapidly; but he did not explain why he made no attempt to turn to the right or left of the Sixth avenue car, and leave the track. There is no evidence that anything prevented him from doing this.

The plaintiff was permitted to testify, over defendant's objection, that the evidence was not within the issue; that while suffering from his injury he employed two men to work in his place, paying them $12 and $15 per week each, $135 in the aggregate. When a plaintiff alleges that his person has been injured and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury (which are called general damages) under a general allegation that damages were sustained; but if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury (which are called special damages), he must allege the special damages which he seeks to recover. It is not alleged in the complaint that the plaintiff expended money in hiring others to work in his place; the defendant had no opportunity of contradicting the evidence, and its reception was error. (Gilligan v. N.Y. Harlem R.R. Co., 1 E.D. Smith, 453; Stevens v. Rodger, 25 Hun, 54; Whitney v. Hitchcock, 4 Denio, 461; 2 Thompson on Negligence, 1250, §§ 32, 33; 2 Sedg. on Dam. [7th ed.] 606; 1 Chitty's Pl. [16th Am. ed.] 411, 515; Mayne on Damages, chap. 17; Heard's Civil Pl. 310-314.)

The plaintiff was permitted to testify that he had paid seventy dollars for the reparation of his wagon. The defendant objected to this evidence upon the ground that it did not establish the extent of the injury or the value of the repairs. The objection was overruled and the defendant excepted. In the absence of evidence that the repairs were proper, or worth the sum paid, it was error to hold that the sum paid could be recovered. This error was repeated. The plaintiff, under a like objection, was permitted to show how much this physician charged him, without giving evidence of payment or any evidence of the value of the services, except the incidental remark of the physician, who testified, "Seventy-five dollars is the amount of my bill now; that is very small, too."

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except BRADLEY. J., dissenting.

Judgment reversed.