Gray v. Brooklyn Heights R. Co.

• Decision Date: 25 June 1903
• Citation: 67 N.E. 899,175 N.Y. 448
• Parties: GRAY v. BROOKLYN HEIGHTS R. CO.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 448

67 N.E. 899

GRAY

v.BROOKLYN HEIGHTS R. CO.

Court of Appeals of New York.

June 25, 1903.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Malvine Gray against the Brooklyn Heights Railroad Company. From a judgment of the Appellate Division (76 N. Y. Supp. 20) affirming a judgment for plaintiff, defendant appeals. Reversed.

This action was brought to recover damages for personal injuries sustained by the plaintiff, as she alleged, through the negligence of the defendant while she was a passenger upon one of its cars, which collided with another and thus caused whatever injury she sustained.

The plaintiff's action was tried at the same time as an action brought by her husband to recover damages for the loss of her services resulting from the same injury. By consent, the two actions were tried together, and submitted to the same jury upon the same evidence and at the same time. Although the court charged that, if the plaintiff was injured by reason of the accident, ‘then each of these parties is entitled to a verdict,’ the jury found for the plaintiff in this action, and against her husband, the plaintiff in the other action. Upon the appeal from the husband to the Appellate Division from the judgment entered on the verdict against him and from an order denying his motion for a new trial, the judgment and order were reversed, and a new trial was granted. 72 App. Div. 454,76 N. Y. Supp. 24. The motion for a new trial in this case was also denied, and the order denying the motion and the judgment entered on the verdict were unanimously affirmed by the Appellate Division. The defendant obtained leave and came here.I. R. Oeland and George D. Yeomans, for appellant.

Henry Escher, Jr., and George F. Elliott, for respondent.

VANN, J. (after stating the facts).

The practice of trying, with the consent of all concerned, the wife's action for personal injuries caused by negligence, and the husband's action for loss of services owing to the same injury, at the same time, the submitting them to the same jury upon the same evidence, should not be discouraged, for it saves the time of the court and witnesses, and reduces the expenses of the parties. When, however, the two actions are thus tried together and inconsistent verdicts are rendered, we incline to the view that sound practice requires both verdicts to be set aside at once, without attempting, by analysis of the evidence or otherwise, to discover whether either should be allowed to stand. No other course is safe, for it cannot be told with reasonable certainty what facts the jury found. The presumption is that they willfully disregarded the instructions of the court, and reached a conclusion by some method not warranted by law. We are unable, however, upon this appeal, to give practical effect to the views thus entertained by us, because the error was not raised by an exception, and we cannot review the order denying a motion for a new trial. Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437, 52 N. E. 650.

The plaintiff has recovered a judgment for substantial damages, and its main support is the claim made at the trial, but not alleged in the complaint, that a miscarriage resulted from the injury which she sustained. Upon the trial she testified that she was married at 17, and 9 months thereafter a dead foetus was removed from her by force. After that she was troubled with displacement of the womb, and on the 2d of November, 1899, went to a hospital for treatment. Nine days later a surgical operation was performed upon her, and on the 17th she returned home and resumed her household duties. On the 8th of December she went back to the hospital for consultation, as she felt strangely, and was troubled with nausea. On her way home the car on which she was riding collided with another car of the defendant, and, although the jolt was so slight that no other passenger seems to have noticed it, she was injured so that she commenced to bleed. Soon after, something about as large as an egg, and colored like blood, passed from her, and after that she bled for about two weeks longer. While upon the stand as a witness in her own behalf she stated that she had been bleeding from the time of the accident until the day the clot came out. The record then continues as follows, the questions having been asked by her own counsel: ‘Q. How long did you continue to bleed after that? Witness: After the miscarriage? Plaintiff's Counsel: Yes. Witness: Well, at least for two weeks. Defendant's Counsel: I move to strike that out as a conclusion. Whether or not it was a miscarriage is in...