Kehoe v. International Railway Co.

Pound, J. Plaintiff, while riding as a passenger on defendant’s trolley car between Buffalo and ^Lockport, was struck and wounded in the head by a trolley wheel which flew off the front car trolley and came through a transom window or ventilator into the smoking compartment, where plaintiff was sitting, in the forward part of a second car attached to and following the first car. Defendant’s counsel moves for a new trial on the ground that the court was in error in admitting, over his objection, the evidence of Dr. Kittinger to the effect that, in his judgment as a physician, plaintiff’s alleged condition as to nervousness, headaches and pain after the accident and before and at the trial might or could have resulted from the accident, plaintiff having previously testified that such conditions were the result of the accident. He cites Huba v. Schenectady R. R. Co., 85 App. Div. 203, decided in the Third Department in June, 1903, as sustaining his proposition; and the evidence seems to fall under the condemnation of the authority relied on.. With diffidence, I venture the opinion that, on this point, the Huba case is in direct conflict -with the rule laid down in Turner v. City of Newburgh, 109 N. Y. 301, has not been followed and is not controlling here. It is a well established rule that apprehended future consequences which are merely possible and speculative are not proper to be considered in estimating damages. Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305. But, as was said by Gray, J., in the Turner case, supra, “ it is perfectly competent to furnish the jury with evidence of the present physical condition and bodily sufferings (of the plaintiff) and with the opinions of competent physicians as to wdiether such could have, resulted from the accident.” The' Turner case was not considered in the opinion in the Huba case. It is, however, cited with approval and followed on this point in the more recent case of Graham v. Bauland [140] Co., 97 App. Div. 145, decided in the Second Department in July, 1904. See also Hamel v. Brooklyn Heights R. R. Co., 59 App. Div. 135; Quinn v. O’Keefe, 9 id. 68, p. 74; Bowen v. R. R. Co., 89 Hun, 594. Motion denied.