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Kehoe v. International Railway

106 N.Y.S. 196 Court N.Y. Sup. Ct. Decision date 1907-10-12 English

Delivered by POUND, J.

Contents

Majority

p. 196
(56 Misc. Rep. 138.)
KEHOE v. INTERNATIONAL RY. CO.
(Supreme Court, Trial Term, Niagara County.
October 12, 1907.)

Headnote

Evidence—Physician’s Opinion—Cause of Personal Injury.
In estimating damages for personal injury, apprehended future consequences which are merely possible and speculative may not be considered, but physician may testify that in his judgment plaintiff’s alleged condition as to nervousness, headaches, and pain after the accident and before and at the trial might or could have resulted from the accident; plaintiff having previously testified that such conditions so resulted.
Action by James B. ICehoe against the International Railway Company. Motion by defendant for new trial on judge’s minutes after $1,500 verdict for plaintiff. Denied.
Morris Cohn, for the motion.
Alfred W. Gray, opposed.

Plaintiff, while riding as a passenger, on defendant’s trolley car between Buffalo and Lockport, was struck and wounded in the head by a trolley wheel which flew off the front car trolley, and ■came through a transom window or ventilator into the smoking compartment, where plaintiff was sitting, in the forward part of a second car attached to and following the first car.

Defendant’s counsel moves for a new trial on the ground that the court was in error in admitting, over his objection, the. evidence of

p. 197
Dr. Kittinger, to the effect that, in his judgment as a physician, plaintiff’s alleged condition as to nervousness, headaches, and pain after the accident and before and at the trial might or could have resulted from the accident; plaintiff having previously testified that such conditions were the result of the accident. He cites Huba v. Schenectady R. R. Co., 85 App. Div. 203 , 83 N. Y. Supp. 157 , decided in the Third Department in June, 1903, as sustaining his proposition, and the evidence seems to fall under the condemnation of the authority relied on. With diffidence, I venture the opinion that, on this point, the Huba Case is in direct conflict with the rule laid down in Turner v. Newburgh, 109 N. Y. 301 , 16 N. E. 344 , 4 Am. St. Rep. 453 , has not been followed, and is not controlling here. It is a well-established rule that apprehended future consequences which are merely possible and speculative are not- proper to be considered in estimating damages. Strohm v. Railroad Co., 96 N. Y. 305 . But, as was said by Gray, J., in the Turner Case, supra :
“It is perfectly competent to furnish the jury with evidence of the present physical condition and bodily sufferings (of the plaintiff) and with the opinions of competent physicians as to whether such could have resulted from the accident.”

The Turner Case was not considered in the opinion in the Huba Case. It is, however, cited with aooroval and followed on this point in the more recent case of Graham v. Bauland Co., 97 App. Div. 145 , 89 N. Y. S. 595 , decided in the Second Department in July, 1904. See, also, Hamel v. Brooklyn Heights R. R. Co., 59 App. Div. 135 , 69 N. Y. Supp. 166 ; Quinn v. O’Keefe, 9 App. Div. 68 , 74, 41 N. Y. Supp. 116 ; Bowen v. Railroad Co., 89 Hun, 594 , 35 N. Y. Supp. 540 .

Motion denied.

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