Opinion
February Term, 1901.
Eugene Treadwell, for the appellant.
Alex Rosenthal, for the respondent.
It is insisted upon this appeal that the verdict is against the weight of evidence. The plaintiff, however, is corroborated by two witnesses, and though her version is met by opposing testimony of at least three witnesses for the defendant, who testified that she stepped off the car while it was in motion, we do not think that the preponderance is so great that we would be justified in disturbing the verdict of the jury rendered upon conflicting testimony. It is admitted that as the car approached One Hundred and Sixty-ninth street the plaintiff evidenced to the conductor her intention to alight, and that she proceeded to the rear of the car so as to be in readiness to do so when the car should stop at that street. At this point the conflict begins, the defendant's witnesses stating that although the car did not stop at One Hundred and Sixty-ninth street, the plaintiff deliberately stepped off and was injured; and on the other hand, the plaintiff and her witnesses testifying that the car came to a stop at that place, and without affording her an opportunity to alight in safety it was suddenly started, throwing her to the ground and causing the injuries described. Her story, supported as it is by other testimony, is equally as natural and probable as that of the defendant's witnesses, for, according to the latter, we must infer that the plaintiff deliberately stepped off the car while it was in full motion — a venture which even an active man, unincumbered by the apparel of a woman, could not make without the probability of being injured.
The second error assigned is in the admission of evidence respecting injuries which, as alleged, were not pleaded and in the charge to the jury that they could award damages therefor. The complaint, after asserting negligence, stated that the plaintiff "sustained severe injuries on her left foot, left arm, left side of her head and her entire left side, compelling and necessitating said plaintiff to remain confined to her bed under the care * * of a physician from the day of such injuries, and is still under the care, charge and control of a physician * * * to alleviate her pains and sufferings." Under this allegation she was permitted to introduce testimony showing that she sustained an injury to the left ear; and this, it is claimed, was error. The ruling admitting such testimony, we think, is fully supported by the following authorities: Quirk v. Siegel-Cooper Co. ( 43 App. Div. 464); Geoghegan v. Third Avenue R.R. Co. (51 id. 369); Ackman v. Third Avenue R.R. Co. (52 id. 483); Kleiner v. Third Avenue R.R. Co. ( 162 N.Y. 193).
The remaining point is an exception to the following charge of the court to the jury: "If from the evidence you are satisfied that in the future the plaintiff will necessarily suffer from the injuries, you may award damages for such future pain and suffering; * * * that must be taken into consideration by the jury in determining what damages the plaintiff should receive." This is a good abstract statement of the rule of damages, and the most that can be urged against it is that it was not applicable to the facts proved. The judge's attention, however, was not called to what is now urged, that there was no evidence of future pain and suffering. The exception was taken to the statement as a proposition of law, although, as we have said, considered in the abstract, it was a correct statement of a rule of damage. The court did not, as contended by the appellant, nor is the language used susceptible of any such construction, charge the jury that they might award damages for future pain and suffering. What the court said was that if from the evidence the jury were satisfied that in the future the plaintiff would necessarily suffer, they might award damages for such suffering, or, in other words, that in cases where from the evidence it appeared with reasonable certainty that there would necessarily be pain and suffering, the jury could consider the question of future pain and suffering.
Apart, however, from this discussion, we think there was here sufficient evidence from which the jury might infer future pain and suffering. Besides the description of her injuries the plaintiff stated that on the very day of the trial she was still suffering from headaches and from buzzing and pain in the ear and her weight had reduced from 140 to 120 pounds. And the physician testified that during the three weeks he was attending her he found in addition to her other injuries, bleeding of the ear and swelling of the head, and the injuries to her head amounted to concussion of the brain. Unless it is assumed that the conditions which the plaintiff describes resulting from concussion of the brain — headaches and pain and buzzing in the ear — down to the time of the trial, should thereupon immediately cease, there was, we think, some evidence, though slight, upon the question of future pain and suffering. Whether there was or was not, however, was left to the jury to determine, and the right under the evidence to present the question to the jury not having been called to the attention of the court, an exception to what was, as an abstract proposition of law, a correct rule of damages, presents no reversible error. That the defendant was in no way injured by what was said upon the subject of damages, appears from the clear and able charge of the judge which carefully eliminated every element of damage other than those for which recovery could be had. The verdict of $1,400, considering the extent and nature of the plaintiff's injuries, must be regarded as moderate and fair.
We think that the judgment and order should be affirmed, with costs.
RUMSEY and HATCH, JJ., concurred; VAN BRUNT, P.J., and INGRAHAM, J., dissented.
I think it was error to leave to the jury the question of damages for future pain and suffering. There was no evidence to show what would be the probable duration of the pains, if they existed at the trial, and the jury were simply allowed to speculate upon this point. The question of future pain and suffering was left entirely to the imagination of the jury. There was no evidence to guide them.
INGRAHAM, J., concurred.
Judgment and order affirmed, with costs.