Jones v. Baltimore Insular Line, Inc.

Full title: FRANK P. JONES, Appellant, v. BALTIMORE INSULAR LINE, INC., Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Mar 27, 1936

247 App. Div. 185 (N.Y. App. Div. 1936)

286 N.Y.S. 688

Opinion

March 27, 1936.

Appeal from Supreme Court of New York County.

Frederick H. Cunningham of counsel [ Lucien V. Axtell, attorney], for the appellant.

William R. Meagher of counsel [ Hunt, Hill Betts, attorneys], for the respondent.

Present — MARTIN, P.J., McAVOY, O'MALLEY, TOWNLEY and GLENNON, JJ.

PER CURIAM.

The questions (1) of defendant's negligence; and (2) whether plaintiff's arm was burned by coming in contact with an unprotected hot steam pipe, or his injuries resulted from boils for which the defendant was in no way responsible, required submission to the jury.

Plaintiff himself testified positively that his arm was burned in the manner indicated. The records of the Marine Hospital, which he entered within a week after the accident is claimed to have happened, show that he then stated that his injury was due to a burn.

While the testimony of one of plaintiff's physicians who was in charge of his case during the course of his hospital treatment, and the hospital records themselves tended to contradict the plaintiff and to show that his condition was diagnosed and treated as "furunculosis" or boils, another physician called by him gave it as his opinion that the resulting cellulitis or infection — a condition conceded by the first physician and shown by the hospital records — was caused by burns and not boils. On this state of the record it was error to dismiss upon the ground that the injuries were due to boils rather than to a burn as claimed by the plaintiff.

With respect to the third cause of action, plaintiff was entitled to maintenance and care at the expense of the defendant beyond his term of service for a reasonable time necessary to effect a cure. ( The Bouker No. 2, 241 Fed. 831.) Defendant's counsel conceded that the plaintiff might at least be entitled to reimbursement for a period of some two weeks after he was discharged from the hospital as an in-patient, provided that the injuries were due to burns.

It follows, therefore, that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

PER CURIAM.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the result.