Brooklyn Heights R. Co. v. MacLaury

• Decision Date: 03 April 1901
• Docket Number: 134.
• Citation: 107 F. 644
• Parties: BROOKLYN HEIGHTS R. CO. v. MacLAURY.
• Court: U.S. Court of Appeals — Second Circuit

107 F. 644

BROOKLYN HEIGHTS R. CO. v. MacLAURY.

No. 134.

United States Court of Appeals, Second Circuit.

April 3, 1901

John L Wells, for plaintiff in error.

Milton Hopkins, for defendant in error.

Before LACOMBE, Circuit Judge, and THOMAS, District Judge.

LACOMBE Circuit Judge.

It is not disputed that defendant was negligent, and there is no contention that plaintiff, who, on June 8, 1898, was a passenger on one of defendant's cars, was guilty of any contributory negligence. That plaintiff was entitled to a verdict in some amount is conceded, but it is contended that $4,000 is an excessive sum. The amount of the verdict however, is not reviewable here. There remains, therefore but a single question for discussion. It is assigned as error that the court admitted certain testimony given by plaintiff herself as to the condition of her eyes subsequent to the accident. The complaint alleges that:

'The plaintiff was hurled forward with such force as to bruise her right knee; sprain, contuse, and shock the right knee joint; wrench her right arm; and otherwise seriously and grievously injure her; and to receive a severe and violent shock to her system, by reason whereof she * * * is, as she believes, permanently injured, so that she will never be as strong or able to pursue her vocation as heretofore.'

The proof showed that plaintiff (the car being in collision with another) was thrown from her seat, striking her knee, elbow, and chest. After describing her injuries and condition before and since the accident, plaintiff was allowed, against defendant's objection and exception, to testify as follows:

'I have had trouble with my eyes since this accident. The condition of my eyes at any time since the accident has been, the first summer objects were distorted; I couldn't see properly; and since then my sight has been very strange. I cannot use my eyes any length of time. I have had glasses changed continually, and wear glasses all the time now, which I did not before. The present condition of my eyes, as near as I can state, is there seems to be a lack of power to see. I can't see well. I can't read. I can't sew, and I can't write. I have consulted an oculist in reference to them, and treatment has been prescribed for them. I have had glasses prescribed by the oculist. I have followed out the treatment and purchase of the glasses directed. I wore glasses before the accident for reading occasionally, not constantly. I now wear them constantly.'

It was duly objected that these injuries were not specified in the complaint. Such objection is without merit, in view of the comprehensive phrase, 'otherwise seriously and grievously injure her,' which will be found in the excerpt from the complaint supra. If defendant wished to be more specifically advised what alleged injuries resulting from the accident it was called on to respond for, it should have moved for a bill of particulars. It was further objected that the trouble with her eyes was not shown to be connected with the accident. The order of proof is largely in the discretion of the trial court, which may properly admit evidence of symptoms first and evidence as to the cause thereof afterwards. The circumstance that counsel for plaintiff asked these questions about the eyesight was no...