App. Div.]

FIRST DEPARTMENT, APRIL TERM, 1903.

GOTTLIEB KAPPUS, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.

Contributory negligence — injury to one who walks in front of a street car-charge as to the motorman's duty to stop the car ·what allegations do not cover injury to

nerves.

In an action brought against a street railroad company whose road was located on Second avenue in the city of New York, to recover damages for personal injuries sustained by the plaintiff, the plaintiff testified that immediately prior to the accident he stood on the southwest corner of Ninety-first street and Second avenue, and that while so standing he looked north and south, but did not see any north-bound car; that he then walked slowly east on the south crosswalk, and that before he reached the south-bound tracks he again looked, but did not see any car; that he did not look again until after he stepped upon the north-bound tracks, when he observed a north bound car almost upon him; that he attempted to avoid a collision, but was struck by the east side of the fender.

He further testified that it was dark at the time the collision occurred, but that, aside from the darkness, there was nothing in the street to obstruct his view to the south; that he was unable to say whether or not the car was lighted and that he did not hear a bell or other signal given before he was struck.

One of the plaintiff's witnesses testified that the plaintiff looked north before he started over the tracks; that at the time he started the north-bound car was ten feet north of Ninetieth street; that it was lighted and was plainly visible; that the plaintiff did not stop or look south, and that when he stepped on the north-bound tracks the car was only two feet distant.

Another one of the plaintiff's witnesses testified that the plaintiff did not look in any direction after he left the corner, and that when the plaintiff stepped upon the north-bound tracks the car was very close to him.

Held, that if the defendant's motorman was negligent in not seeing the plaintiff in time to avoid the collision, the plaintiff was equally guilty of negligence in not seeing the car before he stepped upon the north-bound tracks (per VAN BRUNT, P. J., MCLAUGHLIN and LAUGHLIN, JJ.); That proof of an injury to the plaintiff's nerves was not admissible under an allegation of the complaint alleging that the car run over him, cutting off plaintiff's right arm, mutilating his right foot and otherwise dangerously and permanently injuring him" (per VAN BRUNT, P. J., and MCLAUGHLIN, J.); That it was error for the court to refuse to charge: "If the motorman of the north-bound car, while operating his car with ordinary care, stopped his car as soon as he discovered that the plaintiff was about to step in front of his car, the defendant is entitled to a verdict." (Per VAN BRUNT, P. J., MCLAUGHLIN, LAUGHLIN, PATTERSON and HATCH, JJ.)

FIRST DEPARTMENT, APRIL TERM, 1903.

[Vol. 82.

APPEAL by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of April, 1902, upon the verdict of a jury for $15,000, and also from an order entered in said clerk's office on the 26th day of April, 1902, denying the defendant's motion for a new trial made upon the minutes.

Charles F. Brown, for the appellant.

Everett P. Wheeler, for the respondent.

MCLAUGHLIN, J.:

The plaintiff was seriously injured on the 8th of March, 1899, at about seven P. M., by a collision with one of defendant's north-bound cars at Ninety-first street and Second avenue in the city of New York, and he brought this action to recover damages by reason thereof upon the ground that the same were caused by defendant's negligence. He had a verdict for $15,000, upon which judgment was entered, from which and from the order denying a motion for a new trial defendant has appealed.

We think this judgment must be reversed for the following reasons: (1) Plaintiff's own negligence contributed to his injuries; (2) error in admission of evidence; and (3) error in refusing to charge as requested by defendant, and which will be considered in the order named.

First. It may be assumed that the evidence was sufficient to sustain the finding that the defendant was negligent, but this, of itself, did not entitle the plaintiff to a verdict. He was bound to show, in addition to this, that his own negligence did not in any way contribute to his injuries, and this, we think, he failed to do. On the contrary, his own testimony, taken in connection with the testimony of the witnesses produced by him who saw the accident, established that if the motorman of the car was negligent in not preventing the collision the plaintiff was also negligent in contributing to it. The plaintiff testified, in substance, that he got off one of defendant's south-bound cars at Ninety-second street and then walked to the southwest corner of Ninety-first street, and while standing upon this corner he looked north and south and did not see any car, except

App. Div.]

FIRST DEPARTMENT, APRIL TERM, 1903.

one which was going south, and which was then between Ninetyfirst and Ninetieth streets; that he then walked slowly east on the south crosswalk, and before he reached the south-bound tracks he again looked and did not see any car; that he did not look again until after he stepped upon the north-bound tracks, when he observed a north-bound car almost upon him and he then jumped and was struck by the east side of the fender, thrown against an elevated railroad pillar which stood in the middle of Ninety-first street, and rendered unconscious; that it was dark at the time the collision occurred, but except for that there was nothing in the street to obstruct his view to the south and he was unable to see whether or not the car was lighted; that he did not hear a bell or other signal given before he was struck.

The plaintiff produced two witnesses who saw the collision, Pick and Sullivan. The former testified that he was at the time standing on the southeast corner of Ninety-first street; that he saw the plaintiff standing on the southwest corner and that he observed he looked north and then started to pass over the tracks; that at that time the north-bound car was about ten feet north of Ninetieth street; that the car was lighted and was plainly visible; that he next noticed the car when it was about in the middle of the block, between Ninety-first and Ninetieth streets, and that the plaintiff was then stepping on the west rail of the south-bound track; that he observed that the plaintiff did not stop or look south and that when he stepped on the north-bound tracks the car was only two feet away from him. This witness further testified that there was nothing to obstruct plaintiff's view of the north-bound car, and that when the fender struck him he was thrown against an elevated railroad pillar with such force that the rebound threw him under the car and thus the injuries complained of were sustained. The latter testified that at the time of the collision he was standing west of the south-bound tracks in the middle of Ninety-first street; that he observed the plaintiff from the time he left the corner of the sidewalk until he was struck by the car and that he did not look in any direction after he left the corner; that when the plaintiff reached the space between the north-bound and south-bound tracks the witness then observed the car coming and, to use his own language, “I said to myself, that man is going to get run over;" that when the plain

FIRST DEPARTMENT, APRIL TERM, 1903.

[Vol. 82

tiff stepped on the north-bound tracks the car was very close to him, so close, to again use the language of the witness, "I knew he would get hurt."

Taking this testimony all together, it is clear that the plaintiff did not exercise the care which the law required of him before stepping upon the north-bound tracks, and had he done so, he would not have been injured. The fact that the car was lighted, and that it was visible from the time plaintiff left the corner until he was struck by it, is not disputed, and had he looked in that direction he could have seen it. Manifestly, if the defendant's motorman was negligent in not seeing the plaintiff in time to avoid the collision, then the plaintiff was equally guilty of negligence in not seeing the car before he stepped upon the north-bound tracks. It is true he says he looked, but if he did, no explanation is even suggested why he did not see the car. The street was unobstructed; the car was lighted; and his witnesses to the accident had no difficulty in seeing the car when it was at or near Ninetieth street.

The case, in this respect, is much like Madigan v. Third Ave. R. R. Co. (68 App. Div. 123) in which VAN BRUNT, P. J., said: "It is difficult, upon this evidence, to see how the plaintiff met the burden of showing that he was not guilty of contributory negligence in not seeing the car, or if he was free from contributory negligence, how the defendant was guilty of negligence in not seeing the plaintiff. If the plaintiff was unable to see a fully-lighted car, how was it possible for a motorman to see a person attempting to cross the track? It cannot be that a party going upon a railroad track, who claims to have looked and not to have seen an object in plain sight, has complied with the requirements of the law as to the exercise of due caution." (See, also, Mehrle v. Brooklyn, Queens County & Suburban R. R. Co., 59 App. Div. 617; Johnson v. Third Ave. R. R. Co., 69 id. 247; Biederman v. Dry Dock, East Broadway & Battery R. R. Co., 54 id. 291.) The truth is, the plaintiff carelessly stepped upon the north-bound tracks without looking to see whether a car was approaching, and in this way the accident occurred. Had he looked, the accident would have been avoided.

This being the situation at the close of plaintiff's case, defendant's motion for a nonsuit should have been granted.

App. Div.]

FIRST DEPARTMENT, APRIL TERM, 1903.

Second. The complaint, after alleging that the car knocked him down, set forth the injuries received by the plaintiff as follows: "Run over him, cutting off plaintiff's right arm, mutilating his right foot and otherwise dangerously and permanently injuring him." During the course of the trial a physician, who prescribed for the plaintiff some time after the accident, was asked what he had done for him during that time, and he answered: "I have prescribed for him for his nerves." Defendant's counsel thereupon moved to strike out this testimony, upon the ground, in substance, that it was inadmissible under the allegations of the complaint. The motion was denied and an exception taken. This testimony should have been stricken out. It is sought to sustain the ruling upon the ground that the words in the complaint, "otherwise permanently injured," were comprehensive enough to admit proof of injury to the nerves. A similar contention was made in Geoghegan v. Third Ave. R. R. Co. (51 App. Div. 369). There, the complaint alleged that, "by reason of said collision the plaintiff had sustained severe wounds and bruises to his head, right hip, left arm, back and other parts of his body; that his spine had been injured and that his brain had been injured, and that he had been informed and believed that thereby he had sustained other severe internal injuries," and this court held that it was error to admit evidence tending to prove permanent injuries to the eye. And to the same effect is Hergert v. Union Railway Co. (25 App. Div. 218) and Kleiner v. Third Ave. R. R. Co. (162 N. Y. 193).

Here there was nothing in the complaint which called attention to any injury to the nerves, and if the plaintiff had been injured in that respect, then he should have set out that fact by appropriate allegations. The rule seems to be well settled that, unless the injuries for which damages are sought necessarily and naturally result from those described in the complaint, they must be alleged as special damages or a recovery cannot be had therefor. The injury to the nerves, for which damages were claimed, was not the necessary result of any of the injuries described in the complaint, and it was, therefore, necessary, if the plaintiff sought to recover for these special and not inevitable results of the injury, to allege them as special damage.