Boland v. New York City Railway Co.

Scott, J.

The plaintiff sues for damages resulting from an accident which happened in September, 1904. The direct physical results of the accident were comparatively slight, and the principal basis alleged for substantial damages is that, as is said, the plaintiff suffered nervously, as a result of the accident, down to the very day , of the trial. It is obvious that, in such a case, the burden rests upon the plaintiff to connect, with a reasonable degree of certainty, the alleged result with the cause. To do this, the plaintiff produced as a witness the physician who attended her. He testified as to plaintiff’s nervous condition at the trial, and that, so far as he could remember, she had been in a normal condition before the accident. He then testified that the accident had a “ great bearing ” upon her present nervous condition; that it had “a great deal to do with it;” that there were, at the time of the accident, “ other conditions of affairs which would, lead to nervousnessthat the accident “ had partially to do with ” her nervous condition; that her nervous condition “ could come from the accident ” and the like. The total effect of the physician’s testimony went no further than to establish that the nervous condition might have been caused by the injury. This was not competent evidence to show that the injury did cause the condition1 (Raynor v. Metropolitan St. R. Co., 106 App. Div. 449), and the defendant’s motion that the evidence be stricken out should have been granted. This is not a case where the objecting party is precluded because he failed to object to the questions, because the questions themselves were not, as a rule, objectionable, although the evidence, when elicited, proved to be insufficient and should have been withdrawn from consideration as not tending to prove the only fact as to which it could, in any sense, be considered pertinent. We must assume that this evidence affected the judgment, for in no other way can we account for the damages, which are much larger than would ordinarily be given for such injuries as the plaintiff proved, outside of her continued state of nervousness.

Gildersleeve and MacLean, JJ., concur.

Judgmeiit reversed and new trial granted, with costs to appellant to abide event.