Alberti v. New York, L.E.&W.R. Co.

• Decision Date: 17 December 1889
• Parties: ALBERTI v. NEW YORK, L. E. & W. R. CO.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 77

23 N.E. 35

ALBERTI

v.NEW YORK, L. E. & W. R. CO.¹

Court of Appeals of New York,

Second Division.

Dec. 17, 1889.

Appeal from supreme court, general term, second department.

Action by William M. Alberti against the New York, Lake Erie & Western Railroad Company for personal injuries. Defendant appeals from a judgment affirming a judgment entered on a verdict at the Orange county circuit of $25,000 for plaintiff.

Lewis E. Carr, for appellant.

P. B. McLennan, for respondent.

HAIGHT, J.

This action was brought to recover damages for a personal injury. In July, 1885, the plaintiff was a passenger upon the defendant's express train, and was seated in one of the sleeping-cars. When the train was near Oxford, in the county of Orange, it came into collision with a partially displaced door of a freight car, going in the opposite direction, which broke the windows, and the partititon between them, at which the plaintiff was sitting. He was struck by the broken pieces of glass and timber, and so injured that the muscles of the legs contracted in such a way as to draw both legs up against his body, and render him helpless. No question is made but that there was sufficient evidence to take the case to the jury upon the main elements of the cause of action. It is claimed, however, that errors were committed in the rejection and exclusion of evidence which entitles the defendant to a new trial.

The plaintiff and his wife gave testimony to the effect that he was dependent upon his earnings for the support of himself and wife. This was given under the objection and exception of the defendant. As bearing upon the question of damages, we think this testimony was incompetent. The rule of recovery is, compensation for the injuries sustained. Pain and suffering, loss of time, the expense of medical, surgical, and other attendance, and the diminished capacity to earn in the future, are all proper elements to be taken into consideration by the jury in determining the amount of the compensationthat should be awarded. But in this regard the law is not a respecter of persons. It makes no distinction between the rich or the poor, and a jury has no right to consider that element in determining the amount of the pecuniary compensation. In the case of Myers v. Malcolm, 6 Hill, 292-296, NELSON, C. J., in delivering the opinion of the court, says: ‘A new trial must be granted in this case for the error of the judge in admitting evidence of the wealth of one of the defendants. This was clearly inadmissible, and it is impossible to say what effect it may have had upon the verdict.’ In the case of Moody v. Osgood, 50 Barb. 628, BARNARD, P. J., says: ‘Damages in these cases are not to be estimated by or proportioned to the wealth of the defendant. Indirect proof of the wealth of the defendant is just as inadmissible as direct proof, and for the same reasons.’ To the same effect are the decisions of the supreme court of the United States, and the courts of other states. See Pennsylvania Co. v. Roy, 102 U. S. 451-459;Shaw v. Railroad Corp., 8 Gray, 45;Railway Co. v. Bayfield, 37 Mich. 205;Stockton v. Frey, 4 Gill, 406. See, also 2 Thomp. Neg. 1263; Abb. Tr. Ev. 601; Wood, Ry. Law, 1242.

It does not appear to us that this evidence was competent, as bearing upon the earning capacity of the plaintiff prior to the injury. It is true that the jury heard the plaintiff's condition described, and saw his wife in the court-room, but there was no evidence before them showing the style or manner in which they lived, or the amount that was annually expended in their support, and this could not very well be determined by the jury by a mere inspection of the plaintiff's wife in the courtroom. The plaintiff had already stated the character and nature of his business before his injury, and subsequently stated the amount of salary that he received. His earning capacity was thus fully made to appear by direct and competent evidence. Nor are we inclined to sustain the admissibility of this testimony upon the theory that it was competent, as tending to prove that the plaintiff, after the accident, was unable to perform any labor. There was but little dispute in reference to his actual condition. It was made to appear from the testimony of eye-witnesses and expert physicians who had examined and satisfied themselves as to his condition. We are aware that in the case of Caldwell v. Murphy, 11 N. Y. 416, the court there sustained this character of testimony upon the theory that having a family dependent upon him for support, and being without means of support except his labor and the charity of his friends, his omission to employ himself had a bearing upon the extent to which he had been disabled. But we regard that case as carrying the rule to the outside limit, and do not feel justified in following it in this case. We are thus brought to the inquiry as to whether this evidence was competent for the purpose of showing that the plaintiff used ordinary care to cure and restore himself; that he acted in good faith, and resorted to such means as were reasonably within his reach, to make his damages as small as possible. It doubtless would be, in case any such issue was tendered by the pleadings or raised by the testimony. A person who receives an injury through the carelessness of another is bound to act in good faith, and to resort to such means and adopt such methods as are reasonably within his reach to cure and restore himself. Lyons v. Railway Co., 57 N. Y. 489.

The answer denied any knowledge or information sufficient to form a belief as to the extent and seriousness of the injury complained of. The first witness sworn upon the trial on behalf of the plaintiff was Jonathan Allen, the plaintiff's father-in-law, at whose residence he had been since the injury. He testified as to the condition of the plaintiff upon his arrival, and on down to the time of the trial, and gave the names of the doctors that had treated him. Upon the cross-examination he was asked if the plaintiff at any time since the injury had been under the charge of any physician especially skilled in this class of cases, and he answered that he had not, any more than those he had mentioned, and it appeared that they were ordinary practitioners in the country villages of Andover and Alfred. It was after this testimony was given that the evidence objected to was called out. We do not understand for what purpose the defendant called for this testimony, unless it was his purpose to show that the plaintiff had not had proper care and treatment. The physicians who testified on behalf of the plaintiff were cross-examined by the defendant's counsel, and made to admit that they had never seen a case of this kind before, and consequently had no experience in treating such a case. It further appeared that there was an eminent physician in New York by the name of Dr. Seguin, who was skilled in the treatment of diseases of this character. It was undoubtedly proper for the defendant to cross-examine the plaintiff's physicians as to their skill and experience in treating diseases of this character, as bearing upon the weight which should be given by the jury to the opinions expressed by them in reference to the durability of the disease, and that evidence did not necessarily tender the issue as to whether the plaintiff had made use of the means reasonably within his reach to cure himself. But no such claim can be made as to the testimony called out from the witness Allen. He was not a physician, and had not been called upon to express any opinion as an expert. The defendant had previously shown by the testimony of this witness that Dr. Seguin was especially skilled in that class of cases, and that he had not been called to treat the plaintiff; thus giving point and character to the testimony that the plaintiff had not been treated by any one especially skilled in such cases. It appears to us that this evidence was sufficient to raise such an issue, and that the trial court was justified in admitting evidence that would tend to rebut and disprove such claim, and that this was done by showing that he was poor and dependent upon his earnings, and was consequently not able to employ or pay a skilled physician to visit him from the city of New York. Upon this theory we are of the opinion that the evidence objected to was permissible.

Dr. Shepard was called as a witness for the plaintiff, and asked to describe to the jury the condition in which he found the plaintiff on the morning after the accident, and what his condition had been from that time until the present. This was objected to, upon the ground that the question comes within the prohibition of the Code, as a question of privilege. The counsel for the plaintiff conducting the trial then stated that as his attorney he waived the privilege. The objection was then overruled, and an exception was taken by the defendant, and the doctor proceeded to state the condition of the plaintiff. The Code of Civil Procedure provides that a clergyman, or other minister of any religion, shall not be allowed to disclose a confession made to him, in his professional character, in the course of discipline, enjoined by the rules or practice of the religious body to which he belongs. Section 833. And that a person, duly authorized to practice physic or surgery, shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. Section 834. And that an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment. Section 835. Section 836 then provides: ‘The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient, or the...