Cole v. Fall Brook Coal Co.

• Decision Date: 18 April 1899
• Citation: 53 N.E. 670,159 N.Y. 59
• Parties: COLE v. FALL BROOK COAL CO.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 59

53 N.E. 670

COLE

v.FALL BROOK COAL CO.

Court of Appeals of New York.

April 18, 1899.

Appeal from supreme court, general term, Fifth department.

Action by La Fayette Cole against the Fall Brook Coal Company. From a judgment of the supreme court affirming an order denying a motion for a new trial and a judgment for plaintiff (34 N. Y. Supp. 572), defendant appeals. Affirmed.

Gabriel L. Smith, for appellant.

Charles Marvin, for respondent.

MARTIN, J.

The first ground for reversal upon which the appellant insists relates to the action of the plaintiff's counsel in summing up to the jury. This question arises, not upon an exception taken upon the trial, but upon an appeal from an order denying a motion for a new trial based upon the improper action of the plaintiff's attorney. An affidavit of the defendant's attorney, in which his counsel also joined, was read on the motion, and is to the effect that, in summing up, the counsel for the plaintiff stated to the jury that on the first trial of the action the verdict was for the plaintiff for $8,000. It also appears from the record that after the attention of the trial judge was called to this statement, and in his charge to the jury, he gave the following instructions: ‘Again, in this connection, and in view of further suggestions which have been made by counsel, in view of the fact that this is the second time that this important case has been tried, I say to you that you have nothing whatever to do with the result of the former trial. The fact has crept out here improperly that, upon the former trial, the plaintiff recovered a verdict, and the amount of that verdict has been stated to you; but the fact that the plaintiff recovered in a former trial of this action is no reason why he should recover in this action. The fact that he recovered a certain amount on the former trial has nothing to do with the amount he should recover upon this trial, if he recovers at all. You are aware, I take it, that the evidence which has been furnished on either side on this trial varies very materially from that which was furnished upon the former trial. Witnesses have been sworn here who were not sworn there; testimony has been given here which was not given them; and you are to dispose of this case upon the evidence which has been furnished here, and upon that evidence alone, and not upon any evidence furnished on the former trial, save where that evidence has been read before you with a view of contradicting evidence which has been given here.’ This portion of the charge discloses that the trial judge clearly instructed the jury to disregard the statement which had been made as to the former trial. Without resting simply upon a direction to disregard that statement, he explained to the jury very fully why it should not be considered. Thus, it is clear that, if the trial court had power to correct the error of counsel in making the statement complained of, it was done. This court in Chesebrough v. Conover, 140 N. Y. 382, 388,35 N. E. 635, passed upon a question which is very similar to that under consideration. There, in the opening to the jury, the counsel for the plaintiff made the statement that, upon a former trial of the action, a verdict had been rendered for the plaintiff. The counsel for the defendant thereupon took an exception to the remark, and asked the court to withdraw a juror, or to discharge the jury, so that another could be impaneled that had not heard the prejudicial statement. This was denied, and the defendant excepted. The trial then proceeded, and in the submission of the case to the jury the judge instructed it that it had nothing to do with the former trial of the action, and that the case was to be decided in accordance with the evidence submitted to it on the pending trial, and with the rules of law laid down by the court. In that case, in passing upon the question raised by the defendant's exception, this court held that the motion to discharge the jury was one that rested in the discretion of the court, which could grant or refuse it, taking into consideration the circumstances surrounding the case. In discussing the question it said: ‘It must be assumed here that the jury obeyed the instructions of the judge in reference to that remark, and that it did not influence them in the rendition of their verdict. * * * The remark complained of comes under the head of misconduct of an attorney upon the trial of an action, which is generally, if not uniformly, held to be matter to be dealt with in the court below, and as not presenting any legal error for the consideration of this court. It is also like the case where, upon the trial of an action, the trial judge erroneously receives objectionable and damaging evidence, which he subsequently strikes out, and directs the jury to disregard. In such cases, we have uniformly held that the vice is eliminated, and that theoretically, at least, the erroneous evidence found no lodgment in the minds of the jury.’ We have, in that case, not only an authority to the effect that the same principle applies to the question under consideration as applies to the improper reception of evidence which the court subsequently directs the jury to disregard, but also an authority to the effect that the defendant's motion was addressed to the discretion of the court below, and, consequently, cannot be reviewed by this court. Assuming, then, as we must, that this question is controlled by the same principle that is applicable where improper evidence is received, and the court directs the jury to disregard it, we find that the authorities are numerous, and fully justified the court below in holding that the error committed by the statement of the plaintiff's counsel was eliminated from the case by the explicit and extended charge of the trial judge upon that subject. Marks v. King, 64 N. Y. 628;Platner v. Platner, 78 N. Y. 90;Gall v. Gall, 114 N. Y. 109, 121,21 N. E. 106;Holmes v. Moffat, 120 N. Y. 159, 24 N. E. 275;Blashfield v. Telephone Co., 147 N. Y. 520, 527,42 N. E. 2;People v. Schooley, 149 N. Y. 99, 103,43 N. E. 536. This doctrine has been applied even in criminal cases. People v. Wilson, 141 N. Y. 185, 191,36 N. E. 230;Greenfield v. People, 85 N. Y. 75, 90. While the learned counsel for the defendant has presented a very exhaustive and ingenious argument and brief by which he seeks to distinguish the case at bar from those cited, yet we are unable to perceive any such distinction, which is real or substantial, but are of the opinion that the principle of those cases is applicable to the question under consideration, and requires a conclusion adverse to the contention of the defendant. It therefore follows that the order denying a new trial on that ground should be affirmed.

The next question submitted for consideration arises upon the claim of the appellant that several questions put to physicians and surgeons, called as expert witnesses upon the trial, were improper, and the evidence elicited inadmissible. They were asked to describe the symptoms that would be apparent and would ordinarily and necessarily accompany an injury such as that which the plaintiff sustained. The objection was that it was immaterial and incompetent. It was overruled, and the defendant excepted. This exception raises the question whether the evidence of a properly qualified medical witness, describing the symptoms which would necessarily and ordinarily follow an injury, of which the witness had personal knowledge, is admissible. Witnesses skilled in the science and practice of medicine may give their opinions as to the nature of the disease with which a...