New York Transp. Co. v. Garside

• Citation: 157 F. 521
• Decision Date: 07 November 1907
• Docket Number: 40.,39
• Parties: NEW YORK TRANSP. CO. v. GARSIDE (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

157 F. 521

NEW YORK TRANSP. CO. v. GARSIDE (two cases).

Nos. 39, 40.

United States Court of Appeals, Second Circuit.

November 7, 1907

Arthur K. Wing and F. McIntyre, for plaintiff in error.

M Goodman (Wm. Victor Goldberg, of counsel), for defendants in error.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD Circuit Judge.

These two actions, one by a wife for personal injuries, and the other by her husband for loss of services, were by agreement tried together.

On January 10, 1903, Mrs. Garside got out of a south-bound Sixth Avenue car after it had come to a stop on the south side of Thirty-Fifth street. She was struck by an automobile going north, owned and operated by the defendant, either as she was walking towards the westerly sidewalk as she testified, or according to other witnesses, as she was stepping backward to avoid another automobile going south, while walking towards the easterly sidewalk. We are entirely satisfied that the trial judge properly submitted to the jury the questions of the defendant's negligence and of Mrs. Garside's contributory negligence.

Many of the defendant's other exceptions are founded on the theory that certain medical and other testimony should have been excluded as not covered by the claim for injuries, in the complaint, which is as follows:

'(9) That, by reason of the said occurrence, the plaintiff was grievously hurt and injured, and suffered and still suffers intense pain, and became sick, sore, lame, crippled, and disabled, and so remains, and was injured internally and in her spine, hip, limbs, and knees, and sustained a severe shock and injury to her nerves, and was bruised and cut and for a long time was confined to her bed, and sustained a dislocation of the kidney and other injuries to internal organs, and was otherwise bodily and internally hurt and injured, and still suffers from her injuries, and that she verily believes that for a long time she will suffer, and that such injuries are permanent, and that she has ever since been and still is, and for a long time will continue to be, unable to perform her household duties and to care for her children, and may never be able to perform her household duties, and that she may hereafter be unable to bear children.' A physician testified:

'I found that the right leg in front was far more sensitive than that of the left. I also found that the right leg, the patient lying upon a straight line drawn upon a table, the right leg was about half an inch longer than the left.

'Mr. McIntyre: I ask that that may be stricken out on the ground that it is not alleged in the complaint that in consequence of the injury sustained on the day mentioned the shortening of the leg followed.'

We think that the general allegation in the complaint which described Mrs. Garside as lame, crippled, and disabled and injured in her limbs covered this claim. If the defendant wished to have a more detailed statement of the injuries, it should have demanded a bill of particulars.

The physician was also asked:

'Q. Assuming that this condition of Mrs. Garside which you discovered upon that examination had not existed prior to the 10th day of January, 1903, can you state from your examination with reasonable certainty what would have caused such a condition? (Objected to as incompetent, speculative, and conjectural.)

'By the Court: Q. Could you, if called upon, state with reasonable certainty the causes that would produce such a condition? A. I believe I can.

'Q. You may state that.

'The Court: It is not necessary here to give all the causes unless they require them. You may ask him if he can state with reasonable certainty whether or not a severe blow upon the hip, an injury there, would produce such a condition. A. I can so state.'

These exceptions and some others of the same nature would have been good had the record remained in the condition it then was because the testimony would have been speculative, but the physician went on to testify in answer to a hypothetical question that in his opinion the accident described in that question actually was the cause of Mrs. Garside's condition.

Mrs. Garside was asked:

'Q. Were you able to sleep at this time?

'Mr. McIntyre: Objected to as incompetent and improper, and I object on the ground that the declaration does not state that insomnia existed.'

The physician testified:

'The lady could not sleep any more.

'Mr. McIntyre: I move to strike that out. It is incompetent under the pleadings. The doctor cannot testify to a conclusion. He cannot state whether she could or could not sleep. * * *

'The Court: No. Would those conditions which you found, would they or would they not interfere with sleep? A. Most decidedly.'

We think that this sleeplessness was an incident of Mrs. Garside's condition proper to be proved in support of the general charge in the complaint, although not specified therein, and that it was perfectly competent for the physician to testify that the conditions he found were such as would interfere with her sleep.

The defendant excepted to the plaintiff's giving her weight before and after the accident, because there was no claim for loss of weight in the complaint, and no evidence that the loss of weight was due to the accident. This again we think was but an incident of the plaintiff's condition, which was generally described in the complaint, and thus it was entirely proper to admit such testimony. Similar exceptions were taken to testimony as to loss of appetite and emaciation.

A dressmaker was permitted to testify that she noticed a difference in Mrs. Garside's right hip after the accident. The witness testified that she found by measurement a difference of an inch and a half, but could not say whether the change was in the front or back. This witness, though not a physician, was entirely competent to testify as to her measurements, and, while unable to locate precisely the point where Mrs. Garside's right hip was larger than her left, her testimony confirmed that of a physician that he had found a swelling in the region of the injuries that made the right hip larger than the left.

A witness was asked:

'State what you heard, if anything, when the vehicle came across the avenue and went up.

'Mr. McIntyre: Objected to as improper, incompetent, irrelevant, and immaterial under the pleadings, upon the ground that the negligence charged in the complaint is not the failure to give the signal of approach but running at an excessive rate of speed; and I submit they must stand or fall on the language employed in their complaint. * * *

'The Court: I will overrule the objection, and give you an exception.

'A. When it came across the tracks it did not make any other noise than any other machine or wagon. He came right across the tracks and proceeded up on the west side, and, when he got up on the corner of Thirty-Fifth street, I heard a sudden stop from the machine, and then a noise.'

We think that it was entirely proper for the trial judge to permit testimony as to what those in charge of the defendant's automobile did from the time it started to cross the tracks down to the accident. It is true there was no charge in the complaint of failure to give a warning, but whether the speed of the vehicle was too great, as charged, might depend, among other things, upon whether it was proceeding noiselessly, or whether the motorman was giving notice of his approach.

Another exception is on the ground that the trial judge examined and cross-examined witnesses at an unreasonable length, and thereby so prejudiced the defendant as to make a fair trial impossible. It must be admitted that a continual interposition by the trial judge in the examination of witnesses may prejudice the jury to the extent claimed; still the trial judge has a right, and, indeed, it is his duty, to see that the facts of the case are brought intelligibly to...