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might progress along two lines I have indicated in my statement, meaning involvement of the muscles. I think the time may come when it may terminate in paralysis." This answer was, on the motion of the defendant, struck out, and the referee said, “What he wants to know is, what, in your opinion, will be the probable result ?" No new objection being interposed, the doctor answered, “My opinion is that it is going to terminate in paralysis before they get through with it." The defendant moved to strike out this answer as incompetent and not proper expert opinion,-no foundation laid for it; and the motion was denied, with exception. The doctor was then asked, “Give us your opinion as to the permanency of the injury?" and under the same objection, ruling, and exception, the doctor answered, “I think they are permanent." Subsequently the doctor was asked the question, “Will these injuries, in your judgment, based upon the facts which have come to your knowledge in your treatment of the patient since the accident, and to which you have testified, prove permanent in their results, or otherwise?" The doctor had already stated that he thought that he could answer this question with reasonable certainty. This question was objected to by defendant as incompetent, improper, and immaterial. The objection was overruled, with exception, and the doctor answered, “My opinion is that they will prove permanent.” The doctor was then asked “whether or not nervous irritability caused by a wound or shock might develop into other fatal conditions, with this as the superinducing cause,-the shock or wound.” This was objected to as improper, immaterial, and incompetent. The objection was overruled, with exception, and the doctor answered, “I think it may, if I understand the question right." The result of the questions and answers as to paralysis was that the doctor was asked what, in his opinion, would be the probable result of the spinal irritation which the plaintiff was then afflicted with, and his answer was, “Paralysis." The result of the questions as to the permanency of the plaintiff's injuries, fairly construed, and considered all together, was that the doctor was asked whether the plaintiff's condition as it then existed, in his opinion, based upon his own knowledge and treatment of her, to which he had testified, would prove permanent; and he answered that, in his opinion, it would. It is true that the language of the questions was susceptible of a broader significance, so as to cover all the injuries received in the accident, including those to her knee, but concededly she had recovered from the injury to the knee. The trial was before a referee, and not a jury, and the questions must have been understood by the witness and the referee to refer alone to the spinal irritation then existing. The remaining question was not asked as to the plaintiff, but was a question generally as to the result that might develop from nervous irritability caused by an injury, and the answer was that it might be fatal. The answer as to the permanency of the condition and its result in paralysis was properly received. While an apparently rigid rule was laid down in some of the earlier cases (Strohm v. Railroad Co., 96 N. Y. 305; Tozer v. Railroad Co., 105 N. Y. 617, 11 N. E. 369), in the later cases the rule has been relaxed, or perhaps the cases distinguished (Turner v. City of Newburgh, 109 N. Y. 309, 16 N. E. 344, 4 Am. St. Rep. 453 ; Griswold v. Railroad Co., 115 N. Y. 61, 21 N. E. 726, 12 Am. St. Rep. and 114 New York State Reporter 775; Knoll v. Railroad Co., 46 App. Div. 527, 62 N. Y. Supp. 16, affirmed without opinion in 168 N. Y. 592, 60 N. E. 1113). In the Turner Case the court said the Strohm and Tozer Cases in no wise conflicted with the rule allowing evidence of physicians as to plaintiff's present condition of bodily suffering or injuries, of their permanence, and as to their cause. In the Griswold Case the court said that the questions objected to related to the permanence of the injuries, and sought a medical opinion as to their continuance in the future, or a recovery from their effects, and that such inquiry was competent and proper; that there was an obvious difference between an opinion as to the permanence of a disease or injury already existing, capable of being examined and studied, and one as to the merely possible outbreak of a new disease, or sufferings having their cause in the original injury; that in the former case that disease or injury and its symptoms were present and existing, their indications were more or less plain and obvious, and from their severity or slightness a recovery might reasonably be expected or the contrary, while an opinion that some new or different complication would arise was merely a double speculation,one that might possibly occur, and the other that, if it did, would be a product of the original injury, instead of some other new, and perhaps unknown, cause. In the Knoll Case, the doctor, having testified that the plaintiff was suffering from a general mental deterioration and from deafness, and that this condition would be permanent, was also allowed to state that such condition was likely to grow worse as the plaintiff grew older. This was held proper, under the cases referred to above. Under these authorities, both these classes of questions and answers were proper. Paralysis is not a disease. It is a condition resulting from injuries or diseases. The evidence admitted here was to the effect that the condition of the plaintiff as to spinal irritability would grow worse until it finally resulted in the condition of paralysis. This was admissible under the rule now well understood, to which we have referred. The last question, as to fatal results, was not asked as to the plaintiff, or her condition, but was a general question to an expert, as to whether fatal results might follow injuries producing spinal irritability. It was not based upon the doctor's knowledge or treatment of plaintiff, nor was it asked as to the plaintiff at all. We do not think, in that form, it was objectionable, or that it could in any event have injured the defendant, who was trying the case before a referee,-a lawyer,-and not before a jury of laymen. Moreover, it was apparently in answer to some evidence drawn out on an examination of the doctor by the defendant. Even if some of the answers of this witness were improperly received, and there were therefore opinions improperly expressed by him, we are unable to see how they could possibly have injured the defendant. The referee made a specific finding as to the physical condition of the plaintiff resulting from her injuries. He did not find that her injuries were fatal, or permanent, even, or that paralysis would result. The finding was that her injuries had occasioned her much suffering, and that she was then afflicted with spinal irritation and its attendant results, occasioned by the accident and the shock then received by her. This finding was consistent with the evidence of the defendant's medical expert, disregarding all the evidence of plaintiff's physician complained of. The referee awarded damages based upon this finding, in the sum of $1,800, which was very reasonable, under the circumstances. There is nothing in the reception of the evidence of plaintiff's doctor, therefore, that called for reversal of the judgment.
It is also claimed that the plaintiff could not maintain the action by reason of her failure to serve the notice required by section 2 of the charter of the city (chapter 231, Laws 1898). That section first provides for the presentations of claims in writing to the common council within 30 days after the injuries are received, and provides that "the omission to present any such claim
shall be a bar to an action against the city therefor," and that “no action shall be commenced against the city on any duly presented claim until after the expiration of three months from the presentation thereof." And then follows the provision for the notice in question here:
"Where any action is brought against said city, to recover damages for death or personal injuries, caused by defective sidewalks or streets, the plaintiff must show that notice in writing of the place where said accident oceurred, out of which said claim arose, was given to the mayor, city clerk, or some alderman of said city, within forty eight hours after the happening thereof, in order to maintain such action. Such notice shall be in addition to the written notice hereinbefore required.”
No notice required by the latter part of this section was served within 48 hours after the accident. A notice was served about 72 hours after the accident happened. The referee found that, from the time of the accident until the time the notice was prepared and served, the plaintiff, by reason of her injuries received in the accident, was not in a mental or physical condition rendering it possible for her to transact the necessary business in connection with the preparation and service of such notice, and that she prepared and served the notice as soon as she was in a mental and physical condition enabling her to do so. This provision in a charter was considered and passed upon, under proofs very like these in this case, in Green v. Village of Port Jervis, 55 App. Div. 58, 66 N. Y. Supp. 1042. In that case the notice was served five days after the accident, instead of three days, as in this case, or two days, as required by the charter, but during all that time the plaintiff was not, as the plaintiff in this case was not, in a mental or physical condition rendering it possible for her to transact the necessary business in connection with the preparation and service of the notice, and it was prepared and served as soon as he was in a mental and physical condition enabling him to do so. In that case the appellate division, Second department, held that there was, under the circumstances, a substantial compliance with the statute as to the time of the service of the notice, so as to enable the plaintiff to maintain the action. There is no doubt as to the correctness of that decision. A reasonable construction should be given to the statute. While it is apparent that the legislature in this act intended to provide for very prompt notice to the city of the place where the accident occurred, in order that the city might examine the locality at once, and be able to protect itself against any dishonest claim that might be made, and while in orand 114 New York State Reporter dinary cases 48 hours would be entirely adequate to enable the claimant to give the notice, which is, under this statute, merely of the locality of the accident, yet under some circumstances, manifestly, the statute could not be literally complied with, and to hold that it must be would in these cases be, in effect, holding that no recovery could be had at all. The notice must, of course, be given by the party injured, or by some one acting under his authority, or, if death results, by the personal representative of the deceased person. A notice by some one having no interest in the claim could not be held a compliance with the statute. If the person injured did not die, but was rendered insensible by the accident, and remained so during the whole 48 hours after the accident, or if the accident rendered the injured person insane, or for any othet reason wholly incompetent, and he remained so during the whole 48 hours, in either of these cases no notice could be served, under the letter of the statute. If the person injured was rendered insensible by the accident, and remained so until his death, and there was no opportunity until the 48 hours has elapsed to procure a personal representative to be appointed, then the notice could not be served, under the letter of the statute. It cannot be said with any show of reason that the legislature intended by this statute to deprive claimants of all right of action in cases where the injuries received were of a serious nature, and wherein, from the serious nature of the injuries, there was the stronger reason for holding the city liable for negligence with reference to its streets and sidewalks, and especially when the inability to serve the notice grows out of the very act of negligence for which the right of recovery is given. We are not called upon to lay down any general rule applicable to all cases, but in this case, where the delay in serving the notice was for but 24 hours (1 day after the time provided by the statute), and during the whole time (the 3 days) the claimant was incapable, by reason of her injuries, of transacting any business whatever with reference to the notice, we have no hesitancy in holding that, having served the notice at the earliest moment she was able to do so, the statute was substantially complied with, within the fair meaning and intent of the legislature in enacting the statute. Any other conclusion would be unfair, unreasonable, and unjust, especially when we consider that under the statute the claimant is prohibited from bringing the action until after the expiration of three months from the presentation of the claim, which must be presented within 30 days after the accident occurs.
The foregoing suggestions lead us to the conclusion that the case was properly disposed of by the trial court, and that the judgment should be affirmed, with costs.
McLENNAN and SPRING, JJ., concur. ADAMS, P. J., and HISCOCK, J., concur in result, upon the ground that the objectionable evidence apparently worked no harm
to the defendant.
(78 App. Div. 324.)
McEVOY V. LOMMEL. (Supreme Court, Appellate Division, First Department. January 16, 1903.) 1. MEDICAL BOOKS-ADMISSIBILITY IN EVIDENCE.
In an action for personal injuries it was error to permit defendant to read in evidence extracts from a standard medical book, and this though the matter contained in the book had been in some respects the subject of examination by plaintiff as a part of her affirmative case, and though defendant had a right to cross-examine the physician who testified on such subject with respect thereto, it appearing that he did not do so, but
that he attempted to read the extracts as a part of his affirmative case. 2. SAME-AVAILABLE ERROR.
The error was available, there having been other error committed in respect to the primary questions of negligence and contributory negligence. Per Hatch apd Patterson, JJ., withiuchra b
marin o itun Appeal from trial term, New York county. Pr than t he
Action by Eleanor McEvoy, by her guardian, against Lawrence' C. Lommel. From a judgment in favor of defendant, and from an order denying a motion for new trial, plaintiff appeals. Reversed.
Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
Roger Foster, for appellant.
HATCH, J. By this action damages are sought to be recovered for injuries sustained through the claimed negligent acts of the defendant. The plaintiff at the time of receiving the injuries was an infant of about five years and seven months of age. She was playing with some other children upon the street in front of the premises occupied by her parents in West 118tli street, between Eighth and St. Nicholas avenues, in the city of New York. While so playing she stepped into the street about a foot and a half from the curb, and was there run down by a butcher's wagon, owned by the defendant and driven by a boy of about seventeen years of age, and sustained the injuries of which complaint is made. The testimony upon the part of the plaintiff tended to establish all of the elements entitling the plaintiff to recover damages. The defendant, however, controverted the case as made by the plaintiff, and gave evidence in exculpation from liability. Upon this conflicting testimony the jury found a verdict in favor of the defendant, and such verdict may not be disturbed upon the facts. By this appeal the plaintiff presents certain claimed errors in the rulings of the trial court, which he insists calls for a reversal of the judgment.
After the close of the defendant's proof, the plaintiff recalled the boy who drove the wagon, and interrogated him for the purpose of laying a foundation for giving rebuttal testimony, and also to procure from him an admission of certain statements inconsistent with his direct testimony, or, if not admitted, to lay the foundation for impeaching testimony. Being upon the stand, he was asked if he saw Mr. Williams, a witness for the plaintiff, some time after the accident, and admitted that he had. He was then asked: “Q. Did you not at that
91. See Evidence, vol. 20, Cent. Dig. $& 1517, 2380.