Freeland v. Brooklyn Heights Railroad

Willard Bartlett, J.: This action grows out of a collision between one of the cars of the defendant and a wagon in which the plaintiff was driving, which resulted in the destruction of the horse and wagon, and inflicted personal injuries of considerable severity upon the plaintiff. A clear ■case was made out for submitting the question of the defendant’s negligence and plaintiff’s freedom from contributory negligence to the jury; and there would be no difficulty in sustaining the judgment upon the merits were it not that the record discloses several erroneous rulings which appear to have been prejudicial to the defendant and which probably had the effect of materially increasing the amount of the recovery. • The complaint in this suit mentions the killing of the horse and the demolition of the plaintiff’s wagon; but it contains no allegation [92] that the plaintiff suffered any loss by reason of the destruction of the animal or vehicle. The only averment'of damage relates to the personal injuries which the plaintiff himself claims to have sustained. At the opening of the trial his counsel moved to amend the complaint by inserting an allegation to the effect that the horse which was killed by the defendant’s negligence was worth the sum of $1,750, and that the demolished carriage was worth the sum of $400. This motion was opposed in behalf of the defendant on the ground that after bringing this suit another action had been brought by the plaintiff, through the same attorney, against the same defendant, to recover for damages to the horse and wagon; that an answer had been interposed therein setting up the pendency of the present action as a defense ; and that counsel was not ready to try the question of the value of the horse and wagon herein, but would be taken by surprise by any evidence on that subject. The court denied the plaintiff’s motion to amend, but announced that it would allow the plaintiff to recover the value of the horse and wagon under the pleadings as they stood. When evidence was offered to establish the value of the animal, counsel for the defendant objected on the ground that it was not receivable within the pleadings. The objection was overruled and an exception was taken. Counsel thereupon asked permission to withdraw a-juror upon the ground that he had had no sufficient notice to enable him to prepare to meet the proof i-n.regard to the loss occasioned by the destruction of the horse and wagon. The court, which had already intimated that the defendant ought to stipulate in the second action that the issue of negligence should abide the event in the present action, declined to allow the withdrawal of a juror, and counsel for the defendant again excepted. The court declared that there was no surprise in the case, and over objection and exception received all the evidence offered by the plaintiff in regard to the value of the horse aud w^agon. We are of the opinion that this evidence was not admissible under the complaint. -There was no allegation that the plaintiff had suffered any loss.by reason of the destruction of the horse and wagon, nor did the complaint demand that any damages should be awarded on that account. Indeed, the bringing of the second action by the same attorney indicated that the pleader did not intend to include in this suit any claim' for such damages. In the absence of an [93] ' amendment the proof should not have been received. It is true that counsel for the defendant objected to the proposed amendment; but this was only on the ground that the change in the complaint would operate to place him at a disadvantage by reason of surprise inasmuch as he did not anticipate that any proof would be offered as to the value of the horse and wagon in this case. That objection did not prevent him from insisting subsequently that the evidence was inadmissible under the complaint as it stood. IV e are also of the opinion that after the court had concluded to receive this evidence, whether an amendment was allowed or not, it should have granted the application of the defendant for the withdrawal of a juror. Notice that such application -would be made was given before the case had been opened to the jury by the counsel for plaintiff. The application was equivalent to a motion for the postponement of the trial, and the exception taken by the defendant warrants us in reviewing the refusal of the court to grant it. (Garfield Nat. Bank v. Colwell, 28 N. Y. St. Repr. 723.) It is true that the cases hold that such applications may be granted or denied in the discretion of the trial court; but that discretion is reviewable here. The jury rendered a general verdict of $12,500 in favor of the plaintiff, and made a special finding fixing the value of the horse and wagon at $1,250. The effect of the errors already discussed might be obviated by deducting from the amount of the verdict the $1,250 representing the value of the horse and wagon, if it did not appear that another erroneous ruling in the case probably had the effect of enhancing the sum awarded as compensation for the plaintiff’s personal injuries. This ruling related to the plaintiff’s ability to draw fancy pictures. His occupation was that of a manufacturer of carriages. “ My busi- ■ ness is carriage manufacturer,” he said. “ I have been in business in the Borough of Brooklyn, formerly the City of Brooklyn, as a carriage manufacturer for about twenty years. I have a trade; I am a draftsman and painter and all connected with the business. * * I made drafts of carriages and I worked at the bench, used the saw and plane, and all those tools connected with a mechanical business.” His testimony tended to show that he had lost the use of the fingers of his right hand in consequence of the accident, so that he could no [94] longer use a pencil or paint brush or pen, and that he was noTonger able, to do any work as a draftsman or painter in connection with his business as a carriage manufacturer. The testimony was proper for this purpose and wholly unobjectionable. ■ It was supplemented, however, by the introduction of twenty-six pictures on twenty-six different small cards. The plaintiff testified that those were samples of work done by him before the accident; that they were just drawings that catne into his head, and that he could give counsel a wheelbarrow load of them if he desired. To the court he said : “ I have got a wagon load more if they want them.” A book containing other drawings of the same character was also admitted, the court holding that they showed the cunning of the plaintiff’s right hand which he said had beén destroyed. These drawings were received over, the objection and exception of the defendant. They represent landscapes and other scenes, either copied from nature or the offspring of the plaintiff’s fancy, having no conceivable relation to his business as a carriage maker. They afforded no basis for any estimate of pecuniary loss sustained by the plaintiff in consequence of his inability to produce similar sketches in the future; yet it. is impossible to avoid, the conclusion that the production and exhibition to the jury of those pictures, coupled with the statement that the plaintiff could no longer enjoy the artistic satisfaction which he had formerly derived from thus using his pencil, must have had an effect to augment the verdict. As appears from the record, the learned trial judge entertained serious doubts, as to the admissibility of this evidence, saying that he would like to have time to reflect about it but would let it in as counsel was willing to take the risk. We think it should have been excluded. The extent of the plaintiff’s disability was shown when it was proven that he could not use a pen, pencil or paint brush with his right hand. For all this he was entitled to compensation. But there was no allegation in the Complaint that his disability debarred him from any particular pursuit aside from his ustial vocation, nor could special damages be allowed therefor, unless it was a pursuit in which he earned money. (Baker v. Manhattan R. R. Co., 118 N. Y. 533.) ' The judgment should be reversed and a new trial granted, costs to abide the event. All concurred, except Woodward, J., who read for affirmance.