Seifter v. Brooklyn Heights R. Co.

Citation169 N.Y. 254,62 N.E. 349
PartiesSEIFTER v. BROOKLYN HEIGHTS R. CO.
Decision Date31 December 1901
CourtNew York Court of Appeals
OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Second department.

Action by Frederick Seifter against the Brooklyn Heights Railroad Company. From a judgment of the appellate division affirming a judgment in favor of plaintiff (66 N. Y. Supp. 1107), defendant appeals. Reversed.

Bartlett and Vann, JJ., dissenting.

Isaac R. Oeland and John L. Wells, for appellant.

James C. Cropsey, for respondent.

PARKER, C. J.

The only serious question presented in this case is whether the guessing of medical experts, based upon inaccurate hypothetical questions, to the effect that a broken bone in the ankle, which did not perforate the skin, caused septic pneumonia 4 1/2 months afterwards, furnishes sufficient support for a verdict of a jury awarding damages against the negligent party for the resulting death. The question of the defendant's negligence will not be considered, for it can be said that there was some evidence in its support. Nor can there be any reasonable doubt of the proposition that the most favorable view of the evidence would justify the submission of the question to the jury whether the plaintiff was free from contributory negligence. But whether there was evidence in the record authorizing the jury to find, as they necessarily did, that the injury which the plaintiff received was the proximate cause of his death 4 1/2 months afterwards, presents a very different question. After the accident, which the jury have found to be due to a collision between one of the defendant's cars and the wagon of plaintiff's intestate upon which he was riding, the latter was taken to the hospital, where it was found that he had sustained a simple fracture of the left fibula, which means that the broken bone did not perforate the skin. Ambulance Surgeon Dr. Love reduced the fracture, and attended the patient until the arrival of the regular house surgeon, Dr. Schall, who thereafter continued the treatment. His stay at the hospital lasted about five weeks, during which time his weight was reduced from 260 to 210 pounds, and upon his return home his appetite was bad; he could not sleep; nor could he walk, except with the aid of crutches. About three weeks after his return to his home, Dr. Schall called upon him, and removed the plaster cast which had been about the injured limb, and made an examination of the fracture, which disclosed to him that the bone had united perfectly, and that there remained the usual swelling and soreness incident to the presence of the plaster cast, and nothing more. This was about the middle of February, and a little later, a swelling on Mr. Seifter's thigh troubling him, the family sent for Dr. Love, who prescribed a liniment, which, being applied a few times, the swelling disappeared. From this time on until the 21st of April no physician saw Seifter, but Mrs. Seifter testified that a few days after the 1st of February, when Dr. Love left, three lumps, each as large as two fingers doubled, appeared in the groin, and she also noticed that he had chills, and at the same time was warm and sweating. She testified that these chills continued right along, and that the lumps remained in the groin without change until his death, on May 2d. The daughter also observed the presence of the lumps, and believed that they remained until her father's death, although the family physician.Dr. Moitrier, who was called in on the 24th of April, failed to discover them. On the 21st of April Seifter had a very violent chill, and Dr. Glauvit, who lived near by, was called in, and continued in charge of the patient until the family physician was called on April 24th. Dr. Glauvit was called to the witness stand, but there seemed to be no curiosity to find out what he knew about the patient, as no questions of that nature were put to him. When Dr. Moitrier took charge of the patient, he diagnosed the case as acute croupous pneumonia. He continued to believe in that diagnosis, and to treat his patient accordingly, down to the day of his death, on May 2d, after which he prepared a death certificate in which he stated it to be his opinion that the cause of death was acute croupous pneumonia, a disease which no one pretends could have resulted from a fracture of the leg. Later some one evolved the theory that, if the pneumonia should be diagnosed as septic pneumonia, an opportunity would be presented for the expression of medical opinion to the effect that the death might have been an indirect result of the fracture. And it happened that the family physician (on more mature reflection, presumably) changed his mind as to the cause of the death of his patient, and testified upon the trial that, in his judgment, it was septic pneumonia, and another physician, who saw the patient, agreed with him. Physicians were called by the defendant, all of whom were of a contrary opinion; but it must be conceded that there was some evidence to show that Seifter died of septic pneumonia, and, the jury having seen fit to believe that testimony, we shall in the further discussion of the case assume the fact to be established that the cause of death was septic pneumonia.

We are soon to inquire whether there is any evidence to support a finding of the jury that the fracture was the proximate cause of the septic pneumonia which resulted in death. But before its discussion it will be well to have in mind the rule upon that subject as it was last expressed by this court in Laidlaw v. Sage, 158 N. Y. 73, 99,52 N. E. 679, 688,44 L. R. A. 216, 226: ‘A proximate cause is one in which is involved the idea of necessity. It is one the connection between which and the effect is plain and intelligible; it is one which can be used as a term by which a proposition can be demonstrated,-that is, one which can be reasoned from conclusively. A remote cause is one which is inconclusive in reasoning, because from it no certain conclusion can be legitimately drawn; in other words, a remote cause is a cause the connection between which and the effect is uncertain, vague, or indeterminate. * * * The proximate cause being given, the effect must follow. But, although the existence of the remote cause is necessary for the existence of the effect (for, unless there has been a remote cause, there can be no effect), still the existence of the remote cause does not necessarily imply the existence of the effect. The remote cause being given, the effect may or may not follow.’ Applying this rule, it will readily appear that the record contains no evidence whatever establishing that the fracture was the proximate cause of the septic pneumonia. When I say ‘no evidence,’ I do not mean by that expression that none of the steps have such support in evidence that, if the other steps were established, there would be no evidence for the jury upon the general question, but, instead, that some of the links in the chain leading from the fracture to the disease which caused the death are without any evidence whatever in their support; and hence applying, for the sake of clearness, an oft-used figure of speech, ‘as the chain is not stronger than its weakest link,’ it follows that there was no evidence for the jury upon the general question.

The plaintiff's theory is that there was a septic condition at the point of fracture about the 21st of February,-something more than two months after the injury,-which was carried to the thigh, where its further progress was obstructed, with the result of inflammation at that point manifesting itself in swellings or lumps, to which liniment was applied by the physician, and in a week or more the inflammation, and consequently the lumps, disappeared, but reappeared in the groin a few days later, where they remained until a few days before Seifter's death, when they disappeared; and, as they did not break externally, it is presumed that they did internally, thereby discharging into the venous circulation, with the result that a piece of septic material was broken off and taken to the heart, and from thence to the lung, where it lodged, and caused the pneumonia of which Seifter died. It does not need the aid of medical experts to support the proposition that it was necessary for the plaintiff to offer evidence tending to establish infection at the point of fracture as the first link in the chain, but, if it did, then it is furnished by the testimony of all the experts. Dr. Jeffrey, plaintiff's expert, said, if there was no evidence of any infection at the point of fracture, and no inflammation and no pus at that point, then it is impossible to attribute the inflammation either in this part of the thigh, in the middle thigh, or in the groin, to the fracture. Of the physicians called only one ever made any examination of the fracture after the plaster cast was removed. Dr. Schall, who treated Seifter at the hospital after the first two weeks of his stay, and who subsequently removed the plaster cast, was asked this question: ‘At the time that you examined the fracture after taking off the plaster bandage, was there any evidence there of degeneration or of a septic condition? A. There was not; most decidedly not.’ And further the witness testified: ‘I took off the plaster cast, and examined the fracture. The fragments were approximated and united by the usual formation of callus. There was some swelling of the extremity, which is usual after the application of a dressing of that nature on account of the pressure on the circulation. With a man weighing from 250 or 260 pounds that would be quite apt to be the case. It is always so after all the cases in my experience. Q. In your opinion, doctor, was there a complete and perfect union at the time of your examination of the leg? A. There was, in my opinion, absolutely. This was a simple fracture; meaning by that one in which the bone did not protrude through the skin at all, or communicate...

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