Opinion
April Term, 1902.
Theodore H. Lord, for the appellant.
Otto H. Droege, for the respondent.
Present — VAN BRUNT, P.J., O'BRIEN, McLAUGHLIN, HATCH and LAUGHLIN, JJ.
The plaintiff was injured by a collision with one of the defendant's cars at the "Circle" at Fifty-ninth street while she was riding her bicycle; and the negligence averred is that the motorman, after motioning to her to cross the track, ran into her. The single question urged upon this appeal from the judgment entered on the verdict of the jury in favor of the plaintiff for $1,500 is whether error was committed by the court in permitting one of the physicians to be asked whether the asthmatic condition which he observed in the plaintiff and the attack of asthma which he found to have occurred a few days after the accident "could have been occasioned" by reason of the plaintiff's receiving an injury by coming in contact with some large body with sufficient violence to cause the injury he observed. The question was objected to as incompetent and improper, but was allowed under exception, and the answer was: "This asthmatic condition in my opinion could have been the result of some violence; * * * that is, as far as I know." The question was not asked whether, in his opinion, the plaintiff's asthma was so caused. Previously, however, the physician had testified that a few weeks prior to the accident he had noticed no difficulty with her breathing, and that on the evening of the accident he found her suffering great pain and difficulty in breathing, and he examined her chest and found she was suffering from an attack of asthma and coughing. And he explained that asthma has its typical sign, which is difficulty in getting breath through the bronchial tubes, pain under the chest bone and on the side, increased by any exertion, which gives rise to the peculiar breathing, and "that is all there is to the attack of asthma." He also said, "An attack of asthma always presupposes that there must be an asthmatic condition of the patient at the time," and it sometimes comes from nervous shock, or fright would bring it on. No exception was taken to this, which is similar testimony to that excepted to. The physician also testified that he set the plaintiff's ribs. The plaintiff testified that the doctor was sent for to relieve her difficulty in breathing; that she had never had trouble in breathing before the accident, but now had severe attacks of asthmatic trouble. Another physician testified that he had seen the plaintiff two days before the accident, as she had a severe headache, and she then had no symptoms of asthma — none whatever, and that asthma was one of his specialties. He was then sked if with reasonable certainty he could give an opinion whether that attack of asthma could have been produced by reason of the plaintiff's coming in violent contact with a heavy body, and after some colloquy with the court, he answered that in his opinion physical injuries may be the cause of asthmatic conditions, but he had no knowledge of this case.
It will be seen that substantially the same question was asked of the two physicians, except that in the latter case the words "reasonable certainty" were used, and both answered affirmatively that physical injuries might produce asthmatic conditions. The first question, therefore, although it did not include the words "reasonable certainty," was not really prejudicial; and, moreover, the question whether the injury here resulted in asthma was not asked. Apart from this, however, we have the positive testimony that the plaintiff was never before troubled with her breathing or with asthma, and when seen by physicians before the accident showed no such symptoms, but when seen after it, and as she herself testifies, she had an attack of asthma. When it is further remembered that the plaintiff broke a rib, which had to be set, and that she suffered pain and had difficulty with her breathing as the result of the accident, and that asthma is such difficulty in breathing, and that the complaint avers that the accident and shock brought on an attack of asthma, there was sufficient evidence properly presented upon which the jury could return a verdict.
There was no exception to the charge, nor any request to charge. No mention was made in it of asthma, but the jury was left to determine on the whole evidence what with reasonable certainty were the direct and natural results of the defendant's negligence.
We think, therefore, that the error, if any, was not prejudicial or such as would require a reversal. The judgment and order should, accordingly, be affirmed, with costs.
Judgment and order affirmed, with costs.