Opinion
March 14, 1951.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Piper, JJ.
Judgment and order reversed on the law and facts, without costs of this appeal to any party, and complaint dismissed, without costs. Memorandum: We think the plaintiff has failed to present evidence that the delay in providing medical attendance to the deceased was a competent producing cause of the pneumonitis which caused the death of the deceased. The physician who testified appeared to have a serious doubt in his mind as to whether the disease would not have occurred even though deceased had received prompt medical attention. The jury was therefore permitted to speculate as to the cause of the disease. The evidence being insufficient to support the finding of the jury as to the cause of death being due to the delay in procuring medical attention, the judgment should be reversed and the complaint dismissed ( Seifter v. Brooklyn Heights R.R. Co., 169 N.Y. 254). All concur. (Appeal from a judgment for plaintiff in an action for damages for death of plaintiff's intestate alleged to have resulted by reason of negligent care while under arrest. The order denies a motion for a new trial.)