dent. He resided on Pacific street, near Flatbush avenue. On the afternoon of September 3, 1892, deceased was sent by his mother on an errand to the grocery store on the further side of Flatbush avenue from his residence. He started to cross Flatbush avenue from the west curb, and when about 12 or 15 feet from the curb, and at the first or westerly track, he stooped to pick up something, then proceeded across the avenue, and was struck by the horses of one of defendant's open cars proceeding northwardly on the easterly or down track. It further appeared that at and just before the accident the car was going at a very fast rate. The driver was not looking ahead of him, but was engaged in conversation with a passenger on the front seat, and had his head turned to one side. That he did not see the boy, or even know that he had run over him, till the conductor whistled for the driver to stop, and when the latter looked around to the conductor, the conductor pointed back to the body of the boy, then lying on the track to the rear of the car. The car went about 75 feet from where the boy was lying before it stopped. It was also testified that there was no obstruction to prevent the driver from seeing the boy if the driver had been looking ahead, and attending to his duties. We think that this evidence clearly made out a case of negligence on the part of the driver. It certainly established a state of facts which made it proper to submit to a jury the question of the driver's negligence. Whether the decedent was or was not sui juris, and whether he exercised that degree of care which might reasonably have been expected of him, were questions for the jury to determine. Stone v. Railroad Co., 115 N. Y. 104, 21 N. E. Rep. 712. The law on this subject was carefully laid down by the learned trial judge to the jury, in a charge to which no exception was taken, and the rights of the defendant in this respect were thereby secured to it. We have carefully gone over all the evidence in this case, and we cannot say that the verdict was against the weight of evidence, or that it was the result of passion, bias, or prejudice. There undoubtedly was a sharp conflict between the witnesses on both sides as to some material points in the case, but there was no such preponderance in favor of the defendant as would justify us in setting aside the verdict. The judgment and order appealed from should be affirmed, with costs.

(4 Misc. Rep. 294.)

NORRIS v. BROOKLYN CITY R. CO.

(City Court of Brooklyn, General Term. June 26, 1893.)

STREET RAILROADS-INJURY TO PASSENGERS-NEGLIGENCE.

Where a passenger is injured by the breaking of the platform of a street car which was crowded to its utmost capacity, and it appears that the car was one of a number that had been used by defendant streetrailroad company for more than 12 years, it was proper to submit to the jury the question whether the platform was safe, and whether defendant knew, or could by the exercise of reasonable care have known, that it was unsafe.

Appeal from trial term.

Action by John Norris against the Brooklyn City Railroad Company to recover for injuries sustained by plaintiff while a passenger on defendant's car. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before OSBORNE and VAN WYCK, JJ.

Morris & Whitehouse, for appellant.

M. L. Towns, for respondent.

OSBORNE, J. On the evening of January 25, 1892, plaintiff was a passenger on a car of the Myrtle avenue branch of defendant's lines. He boarded the car near Fulton ferry, and, after riding some distance, surrendered his seat to a female passenger, and took his stand in the rear doorway, with his shoulder leaning against the door, one foot in the car and the other on the platform. As the car moved along, it became greatly crowded, so that there were upwards of 25 passengers on the rear platform, and some 5 or 6 people, including the conductor, stood on the guard rail outside of the rear dashboard. When on Myrtle avenue, near Duffield street, the rear platform broke and went to the ground, and by reason thereof plaintiff was violently thrown to the street, and sustained serious and permanent injuries. Plaintiff brought this action to recover damages for said injuries, he claiming that they were caused by the negligence of the defendant, in that the platform was weak and insecure, and that defendant permitted said platform to become overcrowded, and unable to sustain the weight imposed upon it. Plaintiff had a verdict, and from the judgment entered thereon, and the order denying a motion for a new trial, this appeal is taken.

The one point presented on this appeal by the learned counsel for the appellant is on the exception taken to the denial of the motion to dismiss the complaint, and the ground urged is that plaintiff failed to establish negligence on the part of the defendant. It ap peared on the trial that the car in question was one of a large number built by the defendant, and that it had been in use for over 12 years. It also appeared that on the night in question there was an unusually large number of persons seeking passage on defendant's cars, owing to the elevated railroad company having temporarily stopped the running of its cars. The case was submitted to the jury by the learned trial judge, and they were left to decide whether the platform was insecure, and defendant knew it to be insecure, or could have known it by the exercise of proper care; and also as to whether defendant was negligent in its conductor permitting so large a number of persons to ride upon the platform. We think that the learned trial judge pursued the proper course in submitting this case to the jury. It plainly appeared that the defendant undertook to carry more passengers on the car in question than could sit and stand within the car, and that both platforms and steps were filled to their utmost capacity. No proper effort seems to have been made by the conductor to prevent this excess of passengers from

getting on the car, while it appears that he was diligent in collecting fares from every one on the car. In the case of Lehr v. Railroad Co., 118 N. Y. 556, 23 N. E. Rep. 889, the plaintiff was injured by being pushed off a crowded platform, and in that case the court said, (page 561, 118 N. Y., and page 890, 23 N. E. Rep.:)

"The court would not have been justified in nonsuiting the plaintiff, and holding, as a matter of law, that the exercise of a reasonable foresight would not have led the defendant to anticipate that overcrowding this car and its platforms might render accidents like the one which befell the plaintiff probable. Whether the defendant was negligent in carrying so inany passengers was a question of fact for the jury.'

We think that the law as expounded by the court of appeals in the case just cited made it the duty of the learned trial judge to submit this case to the jury, and that the motion to dismiss the complaint was properly denied. The judgment and order appealed from should be affirmed, with costs.

(4 Misc. Rep. 401.)

BUTLER v. MANHATTAN RY. CO.

(Superior Court of New York City, General Term. July 3, 1893.)

1. EVIDENCE-RES GESTE-REMARKS OF EMPLOYE.

In an action for injuries to plaintiff's wife, who, while entering defendant's car, was struck by a gate which the brakeman was closing, it is admissible, as a part of the res gestae, to show what the brakeman said in response to the woman's exclamation of pain.

2. ACTION BY HUSBAND FOR INJURIES TO WIFE-DAMAGES,

In an action for injuries to plaintiff's wife, resulting in a miscarriage, plaintiff is entitled to recover for the loss of the child.

Appeal from jury term.

Action by Thomas Butler against the Manhattan Railway Company for loss of the services of his wife, resulting from the alleged negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

For report of action by Mrs. Butler for personal injuries caused by the same alleged negligence, see 23 N. Y. Supp. 163.

Argued before FREEDMAN and GILDERSLEEVE, JJ.

Davies & Rapallo, (Joseph H. Adams, of counsel,) for appellant. Lamb & Osborne, (Gilbert D. Lamb, of counsel,) for respondent.

GILDERSLEEVE, J. The plaintiff's wife sustained personal injuries through the alleged negligence of the defendant. This action is brought by the husband for loss of services. While Mrs. Butler, the plaintiff's wife, was boarding one of defendant's trains, she was struck on the side by the gate which the train guard was closing. The evidence fully justified the jury in finding a verdict for the plaintiff. The defendant does not deny that Mrs. Butler was struck by the gate, but the violence of the blow, and its alleged effects, are earnestly contested. The questions of fact thus raised were properly submitted to the jury, who found for the plaintiff, and assessed

the damages at the sum of $2,250. The jury were warranted in giving credit to the testimony offered by the plaintiff, and evidently did credit it. Therefore, the damages awarded cannot be said to be excessive.

Under well-settled rules of law it is manifest that the appeal must fail unless at least one of the assignments of error in the admission or exclusion of evidence by the learned trial judge, or in his instructions to the jury, calls for a reversal.

The first alleged error, to which the learned counsel for the appellant invites our attention, arose upon the plaintiff's wife being allowed to state what the brakeman said, at the moment of the accident, as follows:

"Question. What did the brakeman say upon your exclamation at the moment of the blow? (Defendant's counsel objected to the question as incompetent, immaterial, and hearsay. The court admitted the question, and counsel for defendant duly excepted.) Q. by the Court: After you said ‘Oh!' what did the brakeman say? (Same objection, ruling, and exception were made.) Answer. He said I can go to hell."

The character and quality of the acts of the brakeman at the time the gate struck Mrs. Butler were at issue. It was upon his acts at this time that the plaintiff rested the alleged negligence of the defendant. Mrs. Butler's exclamation, "Oh!" was an outcry of pain, and the brakeman's remark, "Go to hell," an immediate response thereto. It was uttered at the instant Mrs. Butler received the blow, and tended to characterize the act done, and explain its quality. It was contemporary with the main fact under consideration, and material and competent as a part of the res gestae. 1 Greenl. Ev. § 108. The act of the brakeman in closing the gate, and the declaration in question, constituted substantially one transac tion. The testimony is clearly within the rule as to res gestae declarations laid down by Folger, J., in Tilson v. Terwilliger, 56 N. Y. 273:

"To be a part of the res gestae, they must be made at the time of the act done, which they are supposed to characterize. They must be calculated to unfold the nature and quality of the acts which they are intended to explain. They must so harmonize with those facts as to form one transaction. There must be a transaction of which they are considered a part. They must be concomitant with the principal act, and so connected with it as to be regarded as the result and consequence of coexisting motives."

The case of Sherman v. Railroad Co., 106 N. Y. 542, 13 N. E. Rep. 616, cited by the learned counsel for the appellant, is not in conflict with this rule. In speaking of the testimony objected to in that case the court states, (Peckham, J., writing the opinion:)

"It was no part of the res gestae, but was calling simply for a narrative of the cause of a past occurrence."

A careful examination of the other authorities cited in appellant's brief, in our opinion, fails to sustain the appellant's contention on this point.

Under the appellant's second point it is urged that:

"The learned trial judge erred in excluding the testimony of Dr. Bird and Dr. Burrage as to what the plaintiff's wife told them of her physical history when they treated her at the Women's Hospital, inasmuch as by testifying

to these facts herself she waived her privilege of excluding the physicians' testimony."

The testimony sought called for communications between patient and physician, and was properly excluded, under sections 834 and 836 of the Code of Civil Procedure, unless the provisions were waived by the witness. It is claimed that she opened the door to the admission of this testimony by undertaking to tell what had transpired between her and the physicians. This was what took place: Under cross-examination the fact was elicited from the witness that she recognized Dr. Bird and Dr. Burrage as physicians who had treated her at the Women's Hospital. By this cross-examination the defendant did not obtain from the witness a waiver of her privilege, nor open the door to the line of inquiry desired by the defendant. Upon inquiry of plaintiff's counsel, on the direct examination, as to statements made at the Women's Hospital, the witness said:

"They gave me two doses of medicine for my nervousness, and I do not know what statement I made after that. He came (this Dr. Burrage) to take statements, and I don't recollect what I said."

From this it cannot be said that the witness opened the door of the consultation room to the jury, and undertook to give them a statement of what had occurred between herself and the physician. For these reasons, and for the reasons set forth by the general term of this court, in the opinion of Judge McAdam, in the case of Butler against the defendant herein, (Super. N. Y.) 23 N. Y. Supp. 163, to recover damages for personal injuries arising from the same acts of negligence as those upon which this action is based, where a similar question was presented and decided, we are of opinion that the testimony under consideration was properly excluded.

Under appellant's third point it is claimed that the learned trial judge erred in instructing the jury that they could award the plaintiff damages for the inability of his wife to bear children. The evidence establishes the fact of Mrs. Butler's pregnancy at the time she received the injury, and a miscarriage resulting therefrom. On the question of damages the learned trial judge said to the jury that the plaintiff has a right to recover "for damages arising from the injury, and resulting in depriving the plaintiff of prospective offspring." This instruction was proper, and the evidence warranted an award for damages based upon the loss of prospective offspring. No claim was made for damages on account of the inability to bear children, except as to the child of which Mrs. Butler was pregnant at the time of the injury. A careful examination of all the rul ings of the learned court below, bearing upon this point, satisfies us that no error was committed on this branch of the case, prejudicial to the defendant. The charge, taken as a whole, correctly presented the issues to the jury, laid before them the proper rule as to damages, and fully protected the rights of the defendant. We find no error in the admission or exclusion of evidence that calls for a reversal. The judgment and order appealed from must be affirmed, with costs.