Shaw v. Tague

• Decision Date: 15 July 1931
• Citation: 177 N.E. 417,257 N.Y. 193
• Parties: SHAW v. TAGUE.
• Court: New York Court of Appeals Court of Appeals

257 N.Y. 193

177 N.E. 417

SHAW

v.TAGUE.

Court of Appeals of New York.

July 15, 1931.

Action by Florence G. Shaw against Frank J. Tague. From a judgment of the Appellate Division (232 App. Div. 720, 247 N. Y. S. 892), affirming judgment at trial term upon a verdict of the jury in favor of plaintiff, defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Fourth department.

H. Douglass Van Duser, of Rochester, for appellant.

Daniel J. O'Mara, of Rochester, for respondent.

POUND, J.

This is an ordinary negligence action. The jury was justified in finding that plaintiff, a widow aged fifty-five years, was struck by an automobile owned and operated by the defendantwhen she was waiting at a regular street car stop in the city of Rochester to board a street car; that she was careful, and defendant was careless; that she was rendered unconscious; that she sustained injuries for which a verdict for $2,500 was, to say the least, not excessive.

On the trial, witnesses were permitted to testify that at the time of the accident plaintiff's chestnut hair was just beginning to turn grey, but that in a day or two after the accident it turned snow white. No medical witnesses were called to express an opinion that the accident was an adequate procuring cause of the change. At the close of the plaintiff's case, a motion was made ‘to strike out the testimony in reference to the hair turning from chestnut or brown to white on the ground there is no medical testimony to show in any degree that such a change was occasioned by any injuries sustained in this accident.’ No specific ruling was made on this motion, but the trial justice in his charge said: ‘She claims that there is a change in her physical appearance. She is entitled to be compensated fairly and adequately for any changes that have come to her person as a result of the accident.’ At the conclusion of the charge, we find the following:

‘Mr. Van Duser: I desire to except to that portion of your Honor's charge where you submitted to the jury the proposition that changes of personal appearnace are questions of fact for a jury.

‘The Court: You refer to the hair?

‘Mr. Van Duser: As to the hair.’

The only point which this court can consider on this appeal is whether it was error to permit the jury to consider, on the question of damages, the fact that plaintiff's hair turned white immediately after the accident, in the absence of evidence tending to show that the change in its color was due to the accident.

It is a matter of common knowledge or belief that hair may grow white in a single night from sudden fears. Byron, The Prisoner of Chillon. Miiller, in ‘Hair and its Preservation’ says: ‘Gray hair, so long regarded purely as a sign of approaching or premature age, is simply due to the absence or loss of...