Griffiths v. Metro. St. Ry. Co.

• Citation: 171 N.Y. 106,63 N.E. 808
• Parties: GRIFFITHS v. METROPOLITAN ST. RY. CO.
• Decision Date: 13 May 1902
• Court: New York Court of Appeals

171 N.Y. 106

63 N.E. 808

GRIFFITHS

v.METROPOLITAN ST. RY. CO.

Court of Appeals of New York.

May 13, 1902.

Appeal from supreme court, appellate division, First department.

Action by Harry Griffiths, by Henry W. Griffiths, guardian ad litem, against the Metropolitan Street Railway Company. From a judgment of the appellate division (71 N. Y. Supp. 406) reversing a judgment dismissing the complaint, and reinstating a verdict in favor of plaintiff, defendant appeals. Reversed.

On the 17th day of April, 1899, the plaintiff, a boy between seven and eight years of age, was struck by one of the defendant's north-bound cable cars on Columbus avenue, between Ninety-Third and Ninety-Fourth streets, in the city of New York. This action is brought to recover damages for the injuries he thus received. The accident occurred between 5 and 6 o'clock in the afternoon. The day was clear and bright. The plaintiff lived with his parents at the northwest corner of Columbus avenue and Ninety-Third street. Just before the accident he had been sent by his mother on some errands. Having made some purchases at a store on the west side of the avenue, just below Ninety-Fourth street, he started to cross the street directly in front of the store. He stood at the curb, watching some men at a manhole for a short time, and then proceeded into the street as far as the easterly or uptown track of the defendant's road, where he waited for an up car to pass. Then he looked north and south, and stepped upon the ‘up track.’ While upon the track, and, as he says, waiting for two south-bound cars to pass, he was struck by an up-bound car. As a result of this collision, one of his arms was fractured, and one of his legs was so badly crushed that it had to be amputated just above the ankle. There was a sharp conflict in the evidence as to the distance between the car and the plaintiff when he stepped upon the track. The plaintiff testified that when he attempted to cross the track there was no up-bound car in sight as far south as the corner of Ninety-Third street, which was about 150 feet distant; that he did not see it until it was two or three houses from him; that he then attempted to get off the track, but the car was coming so fast he could not get out of the way in time to avoid the accident. Other witnesses corroborated the plaintiff's story. There was some evidence upon which the jury had the right to find that the car could have been stopped in time to have avoided the accident, although it was going at full speed, and there was conflicting evidence as to whether the warning gong was sounded or not. The plaintiff was a bright, intelligent boy, who, according to his mother's testimony, was capable of taking care of himself upon the street. No motion to dismiss the complaint or for a nonsuit seems to have been made at the close of plaintiff's testimony. After all the evidence was in, counsel for the defendant moved ‘to dismiss the complaint upon the ground that the plaintiff has not shown by a preponderance of proof that he was free from contributory negligence, and that the accident was caused solely by the negligence of the defendant.’ The trial court reserved decision upon this motion pending the submission to the jury of certain specific questions, in accordance with the practice authorized by section 1187 of the Code of Civil Procedure. The answers which the jury returned to these questions disclose that they found that the gripman of the car saw the plaintiff in time to have avoided the accident, that the defendant was guilty of negligence which caused the injury, and that neither the plaintiff nor his parents were guilty of contributory negligence. Plaintiff's damages were fixed at $5,000. After the jury had rendered this verdict, the defendant renewed the motion to dismiss, and also moved for a new trial. No exception was taken by the defendant to the action of the trial court in submitting to the jury the questions whether plaintiff was free from contributory negligence, and whether the defendant was negligent. The trial court subsequently set aside the verdict, and dismissed the complaint, without granting a new trial. The plaintiff then appealed to the appellate division from the judgment entered upon the order of the trial court setting aside the verdict and dismissing the complaint. The appellate division reversed the order dismissing the complaint, and reinstated the verdict, also without ordering a new trial.

David B. Hill, Charles F. Brown, Theodore H. Lord, and Henry A. Robinson, for appellant.

Ferdinand E. M. Bullowa, for respondent.

WERNER, J. (after stating the facts).

The form of defendant's motion to dismiss the complaint seems to concede that there was some evidence of defendant's negligence, as well as plaintiff's freedom from contributory negligence. The motion was based upon plaintiff's alleged failure to establish by ‘preponderance of proof that he was free from contributory negligence, and that the accident was caused solely by the negligence of the defendant.’ However that may be, the facts involved in the inquiry have been disposed of by the learned appellate division in favor of the plaintiff, and this court is bound by that decision. The only question presented by the record which is open for our consideration arises upon an exception taken to a ruling of the learned trial court in excluding certain evidence of a physician called as a witness for the defendant. This evidence was excluded because it was thought to be within the prohibition of section 834 of the Code of Civil Procedure, which provides, ‘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.’ One Dr. Moorehead, called as a witness for the defendant, testified that he was at the scene of the accident when the ambulance arrived, but, aside from the fact that he rendered first aid to the plaintiff in the drug store immediately after the accident, he had no relation with him. The record discloses that Dr. Moorehead was an attending physician at the J. Hood Wright Memorial Hospital, where the boy was taken, and had ridden with the boy in the ambulance about three blocks of the way to the hospital; that he was also a surgeon in the employ of the defendant, but whether such employment commenced before or after the accident is not disclosed; that he next saw the boy about 10 days afterwards at the hospital, when he had a talk with him, as he says, as part of his duty toward the defendant. He was then asked by counsel for the defendant: ‘Can you state whether or not, from his conversation, he was suffering any pain, or whether he talked with you and understood you?’ The court here interposed and said: ‘We will settle the question of the admissibility of his evidence.’ The witness was then permitted to continue, saying: ‘I then asked him to tell me the details of his accident, and I received some reply from him.’ At this point a discussion ensued between counsel and court, at the conclusion of which the court, after expressing doubt as to the admissibility of the testimony, said, ‘I will give you an exception,’ although up to that time no objection appears upon the record. The witness then stated: ‘I did not in the hospital at this time, ten days afterwards, go to treat him, in any sense, as a physician.’ The doctor was then interrogated by counsel for the defendant as follows: ‘Q. Did you have any talk with him as to that condition, or only as to the way in which the accident happened? A. It was entirely as to the method of the accident. Q. So that whatever he...