Mundy v. Levy Bros. Realty Co.

Blackmar, J.: On May 5, 1915, the plaintiff, who resided in an apartment house owned by the defendant, was in the hall on the ground floor, standing on the lower steps of the stairs, with one hand [469] resting on the elevator shaft, waiting for the elevator, when a door to the shaft, weighing about 150 pounds, fell from the fifth floor to the bottom of the shaft. The fall of the elevator, with the resulting noise, vibration and jar, caused plaintiff to lose her balance and fall, thereby receiving the injuries of which she complains. When plaintiff rested at the trial, and again at the close of the testimony, defendant moved to dismiss the complaint on the ground that no negligence on the part of defendant had been shown and that plaintiff’s injuries were caused by fright alone. The learned judge who presided reserved his decision without objection by either party, and submitted the case to the jury. He charged, in substance, that if plaintiff’s fall and consequent injuries were the result of fright! she could not recover, but if her fall was caused by the shaking of the stairs, due to the negligence of defendant, she could. The jury found for plaintiff, assessing the damages at $2,500. On motion by defendant the verdict was set aside, and the motion to dismiss the complaint, the decision of which had been reserved, was granted. From this order setting aside the verdict and from the judgment entered on the dismissal of the complaint, the plaintiff appeals to this court. The first question presented is whether it was error to dismiss the complaint. In deciding this we must, under a familiar rule of law, take that view of the evidence most favorable to the plaintiff. The court did not declare upon what theory the complaint was dismissed; but as the inference of negligence on the part of the defendant and freedom from contributory negligence on the part of the plaintiff flowed naturally from the facts established by undisputed evidence, it must have been on the theory that plaintiff’s injuries were caused by fright, for which the defendant was not responsible, under the doctrine of Mitchell v. Rochester Railway Co. (151 N. Y. 107) and Hack v. Dady (142 App. Div. 510). But not only was there testimony by plaintiff that her fall was the result of the physical disturbance of her support, caused by the fall of the door, but we think the case did not fall within the doctrine of the cited cases, but rather within that of Cohn v. Ansonia Realty Co. (162 App. Div. 791) and Wood v. N. Y. C. & H. R. R. R. Co. (83 id. 604; affd., 179 N. Y. 557). [470] In both the Mitchell and the Hack cases there was fright caused by the negligence of the defendant, without any accompanying physical injury. In both cases the plaintiff was a woman and the fright was followed by miscarriage. In the Mitchell case, where the doctrine is enunciated and laid doiyn, it is limited to cases “ where there is no immediate personal injury.” But in the present case there was immediate personal injury. Obviously the fall of the elevator door caused the injury; and the Cohn and Wood Cases (supra) are authority that the chain of cause and effect is not broken because one link in the chain is the present effect upon the mind and nerves of the plaintiff without trespass on her person. • In the Cohn case the plaintiff was so frightened at seeing her children in an elevator, ascending with no operator and both doors open, that she fell into the shaft, and the court said: “ For fright alone, unconnected with physical injury, it is true that no recovery can be had, but when the fright results in an actual physical injury a different rule prevails.” The claim of the plaintiff is not to recover damages for fright or physical ailments due to fright, but for the physical injuries to her person which were the natural immediate result of defendant’s negligence. No case is presented for a charge to the jury that if fright caused the plaintiff to fall she cannot recover. As the evidence was sufficient to sustain a finding that defendant was negligent, plaintiff free from contributory negligence, and that defendant’s negligence caused injury to plaintiff’s person, the complaint should not have been dismissed. The learned trial judge took the verdict and then set it aside and dismissed the complaint in an effort to create a condition where a final decision might be reached by reinstating the verdict if, on appeal to this court, it should be decided that the dismissal was error. The result does not necessarily follow. On an appeal from a judgment of nonsuit, the question is whether there is evidence which should have been submitted to the jury. On an appeal from an order setting aside the verdict the additional questions are presented whether the verdict is against the weight of evidence and whether it is excessive or insufficient as the case may be. We have decided that the dismissal of the complaint was error, and the judgment must necessarily be reversed. There [471] still remains the order setting aside the verdict. Because the judgment is reversed, it does not necessarily follow that the verdict must be reinstated. In this case we think the verdict was not against the weight of evidence. Nothing, perhaps, need be added to what we have already said. The case falls plainly within the doctrine of res ipsa loquitur, and no explanation of the fall of the door consistent with the exercise of care was presented; the plaintiff was unquestionably free from contributory negligence; the causal relation between the defendant’s negligence and plaintiff’s injuries was established if plaintiff’s testimony be believed; and her credibility was for the jury. There remains nothing but the question of damages. The verdict of the jury was in excess of the jurisdiction of the court, but the plaintiff has filed a stipulation reducing it to the proper amount. We see no reason why this cannot be done. The plaintiff suffered a sprain or bruise of the shoulder; she was kept in bed for three days; she went to the country for rest and stayed about six weeks; she testified that ever since the accident she suffered with a pain in her spine. Her physician, who attended her after the accident, did not remember whether she complained of an injury to her spine, but a Doctor Gallagher, who examined her two years after the accident, testified that she had a fractured coccyx. We cannot say that the damages awarded were excessive, and, therefore, think that the order setting aside the verdict should be reversed, and the verdict reinstated. Before closing, we think that notice should be taken of the brief filed by respondent. It contains passages which are indecorous, as it improperly travels outside the record with quotations from the stenographer’s minutes of the former trial and comments thereon. It is an affront to this court to assume that its judgment will be affected by reflections on opposing counsel, based on matters outside the record. A counsel’s duty to his own client should lead him to moderation, fairness to his adversary and respect to the tribunal to which his brief is submitted, for these qualities, and not their opposite, meet the approval of the court. The judgment of the County Court of Kings county and the order setting aside the verdict should be reversed, the verdict as reduced by the stipulation reinstated and judgment [472] thereon directed for plaintiff, with costs and the costs of this appeal. Present — Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ. Judgment and order of the County Court of Kings county setting aside the verdict reversed; the verdict, as reduced by the stipulation, reinstated, and judgment unanimously directed for plaintiff, with costs and the costs of this appeal.