Geoghegan v. Third Avenue Railroad

Van Brunt, P. J.: This action was brought to recover damages for injuries sustained by the plaintiff through a collision with one of the defendant’s cars, at or near Forty-third street, as the plaintiff was attempting to cross one of the defendant’s tracks. The plaintiff claimed that on the 31st of March, 1897, he was driving a wagon along Third avenue in the early morning at about a quarter to six o’clock. He was on his way up town, and had been driving in the tracks of the defendant up to Forty-second street, where he pulled out to the east side of the street. The car stopped at Forty-second street, As the plaintiff proceeded up town his progress was obstructed by some fire trucks. so that he turned hack into the tracks before he reached Forty-third street. He continued on the easterly track of the road [370] "until he reached Forty-fourth street and about the center of the crossing. 'At that point he looked back and saw the cable car about fifty feet or more behind when he started to pull out. The horse and wagon got clear of the track, with the exception of the hind wheel which was struck by the car, and the plaintiff was thrown out and injured. The' defendant claimed that the plaintiff was driving north on the roadway of Third avenue alongside of and to the east of the car between the track and the curb, moving rapidly, his horses at a gallop, when suddenly without warning he turned to the westward upon the track directly in front of the car. As soon as the defendant’s gripman saw the wagon turning in front of him, he released the cable, applied his brake and did all in his power to stop the car, which struck the left side of the wagon and knocked it against one of the pillars of the elevated railroad, and the plaintiff was thrown out and injured. . . The complaint alleged that, by reason of said collision, the plaintiff had sustained severe wounds and bruises to his head, right hip, left arm, back and other parts of his body; that his spine had been injured, and that his brain had been injured* and that he had been informed and believed that thereby he had sustained other severe internal injuries. The grounds presented upon this appeal are errors, claimed to have ■been made in the judge’s charge and refusals to charge ; and also in the admission of testimony tending to prove permanent injury to the eye of the plaintiff, followed by ¿"charge .of the court instructing the jury that they might award, damages for such permanent injury. It was also claimed that the damages were excessive. In nespect to the errors claimed to have been made by the judge in his charge and refusals to charge, the only ones presented for our consideration upon this appeal are those relating to that part of the charge ‘of the court which referred to the circumstances surrounding the immediate happening of the accident, namely, the turning in. or out of the plaintiff upon or from the tracks of the defendant. And it is urged that the court erred in refusing to charge that if the jury believed that just before the happening of' the accident the wagon was driving up the east roadway of Third avenue between the tracks and the curb, and that it turned into the track in front of the [371] car, their verdict must be for the defendant.- It is clear that this proposition is not well expressed, because it did not contain an element which was necessary to make it a good proposition, namely, that the plaintiff turned into the track in so close proximity to the car that the gripman, using proper diligence, could not avoid a collision. The expression of the request is “ turned into the track in front of the car.” It might have been 100 feet away from the front of the car, and the gripman might have had ample time to have stopped the car so as to avoid a collision; and yet the jury were requested to be instructed in that case that- the plaintiff could not recover. It is clear that the court was justified in refusing such a request. The exception to the evidence in regard to the permanent injury to the eye seems to be of a more serious character. There was nothing in the complaint which called attention to an injury of that kind. It was clearly in the nature of special damages; and the rule has .been recently reiterated in the Court of' Appeals that unless the injuries for which damages are sought to be recovered necessarily and immediately result from those described in-the complaint, they must be specially alleged as special damages or a recovery cannot be had for such injuries (Kleiner v. Third Avenue R. R. Co., 162 N. Y. 193); and Attention is called in the case cited to that of Uransky v. D. D., E. B. & B. R. R. Co. (118 N. Y. 304), the rule being approved that “ ‘ special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged.’ ” It is clear that these injuries to the eye which were claimed to be established by the evidence in this case were - not the necessary result of any of the injuries described in the complaint. Certainly, the head could be injured without the eye being affected, and the brain might be injured without the eyes being implicated ; and these are the only allegations to which this injury to the eye' could be referred. Under the rule suggested it was necessary, if the plaintiff sought to recover for these special and' not inevitable results of the injury, to allege them as special damages. This rule of pleading gives a clear and unmistakable guide to the court in the admission of proof, and to the defendant in his preparation for trial. Injuries which inevitably result from those described in the complaint, and which the defendant must know from the allegations of [372] the complaint had been suffered, may be recovered for under the general allegations. But where the injury is of a character which does not necessarily result from that described in the complaint, then the defendant has no reason to expect proof of any such unsuspected injury upon the trial. We think that for this error the judgment and order must be reversed and a new trial ordered, with costs to the .appellant to abide the event. Rcjmset and McLaughlin, JJ., concurred; Ingbaham, J., dissented.'