Ryan v. Porter Manufacturing Co.

Hardin, P. J. 1. It appears that after the plaintiff received the injuries he was taken home and placed in bed. His mother, who was called as a witness, testified, viz.: “His suffering was bad; very hard. I guess I know. He complained of great suffering. I was up day and night with him. ” Thereupon the following question was propounded to her: “ Question. You may state what complaints of bodily pain he made during the time he was confined in bed, if any.” This question was objected to as immaterial and improper and inadmissible. Thereupon the court remarked: “The question is too broad.” Then the plaintiff propounded the following question: “Q. Well, commence at the early part, just as he was placed in bed and being taken home, and state what complaints of bodily pain he made, or what you observed as to his condition of suffering. ” Similar objections to those already stated were made to this question, and they were overruled, and the defendant took an exception. The witness answered: “Answer. Well, he complained of his back in the first place, and pain in his leg. ” Thereupon the defendant moved to strike the evidence out. The court denied the motion, and the defendant took an exception; and thereupon the plaintiff propounded the following question: “Q. What complaints did he make? Tell the jury, so that they can hear you, how bad he suffered. A. Well, he complained many times that they hurt him so that he didn’t know, that he could live through.” The defendant moved to “strike out the evidence upon same grounds as stated in last objection.” The motion was denied, and the defendant excepted. The witness stated that he was “taken up and helped on the lounge Christmas morning.” Thereupon the following question was propounded to her: “How, did he complain of suffering during that time?” The answer was: “Yes, sir. Hot much. Hot as much as he had nine or ten .days the worst of his suffering. The first nine or ten days were the worst of his suffering.” In Olp v. Gardner, 48 Hun, 169, in an action which was brought to recover damages for injuries sustained by the plaintiff, “her husband was allowed, against the objection and exception of the defendant’s counsel, to testify as to complaints made by his wife, after the day of the accident, of being dizzy-headed, of a great roaring in her head, and of pain in the back of her eyes. Held, that the evidence should not have been received. * * * The evidence of statements made long after the injury as to the effect of the injury, or as to the sufferings endured 776 therefrom, is not competent.” In delivering the opinion, the court refers to Roche v. Railroad Co., 105 N. Y. 294, 11 N. E. Rep. 630, in which case the court of appeals held as follows: “In an action to recover damages for alleged negligence causing a personal injury, declarations of the party injured, made some time after the injury, simply to the effect that he is suffering pain, when not made to a physician for the purpose of professional attendance, are not competent as evidence.” We think the rulings made by. the trial judge, tested by the cases to which we have just referred, were erroneous. Respondent calls our attention to Hagenlocher v. Railroad Co., 99 N. Y. 136, 1 N. E. Rep. 536. As we understand that case it is only an authority for holding that it is “competent for plaintiff to prove exclamations indicative of pain made by such person at the time of the injury.” We think it does not justify all the evidence which was received in the case before us. Our attention is invited to Lewke v. Railroad Co., 46 Hun, 286, where a witness was permitted to testify that he “saw the plaintiff picked up from the spot where he received the injury.” The plaintiff immediately went to the store of the witness, and the witness “noticed the condition of his clothes, and that his left leg seemed to be swelling. It was at this time that he complained of pain in his limb.” And it was stated by the court in this case, viz.: “And it would seem that the complaint in the present case, made so soon after the accident, and while plaintiff’s injured leg was visibly swelling, was so closely allied to mere exclamation as to justify the reception of the evidence.” If we were to give full effect to all that was decided in this case, it would not justify the reception of all the evidence received in the case before us. The opinion contains no reference to Roche v. Railroad Co., supra. In the latter case, Peckham, J., said: “Her declaration that ‘it pained her very badly’ is mere hearsay, and should not have been permitted. ” Applying that rule to the case before us, we think some of the evidence given by the plaintiff’s mother was inadmissible, and erroneously receivéd. 2. The case states, viz.: “During the summing up to the jury, counsel for the plaintiff stated to the jury that he would ‘read to them the law applicable to this case as it had been laid down by the court of appeals,’ and commenced to read to them authorities.” Thereupon the counsel for the defendant objected. The court permitted the authorities to be read, and the defendant took an exception thereto. While we do not propose to examine the question involved in the exception, and place our decision upon the ruling made in respect to the right of counsel to read authorities to the jury, we may observe in passing that it was the duty of the trial court to instruct the jury as to the law ofjthe case, and we may call attention to the appropriate remarks of Brady, J., in Lesser v. Perkins, 39 Hun, 343, in dealing with a similar question. He says: “The practice of reading to the jury, as done here, has been condemned by a number of adjudged cases. People v. Anderson, 44 Cal. 70; Tuller v. Talbot, 23 Ill. 357; Sprague v. Craig, 51 Ill. 288; Reich v. Mayor, etc., 17 Wkly. Dig. 141; Allaire v. Allaire, 39 N. J. Law, 113; Koelges v. Insurance Co., 57 N. Y. 638. Perhaps in this state it may be done where the matter read is the law of the case, and can by no possibility prejudice the adverse party, (Koelges v. Insurance Co., supra;) but, nevertheless, it must be said that it is a custom more honored in the breach than in the observance, and, further, should not be allowed as long as the jury are required to accept for their guidance the legal rules pronounced by the court. If the counsel desires to call the attention of the court to rule, doctrine, or maxim, and to illustrate by treatise or adjudication, it is proper to do so; but the jury, if addressed on the subject by counsel, may confuse the construction and the reading, and thus obstruct, if they do not defy, the administration of justice.” The observations made by the learned judge meet with our approval, and accord with the general practice which has come under our observation. 3. Defendant requested the court to charge the jury, viz.: “That if the 777 jury find that it was negligent for Dee, plaintiff’s foreman and co-employe, to continue piling up iron on the table in question after he saw the floor sag thereunder, and that such negligence caused the accident, then plaintiff cannot recover. ” The court refused to give the charge as requested, but did charge the same, adding thereto the words: “Provided defendant had performed its duty in the construction of the groundwork and floor in question.” The defendant also asked the court to charge “that, if the jury find that plaintiff, prior to the accident, knew of and appreciated the manner in which defendant’s floor was constructed, then he assumed the risk of the defect, if any, and its construction.” This request was refused, and the further request was made “that, if the plaintiff was capable, and had the opportunity, by knowing thereof, prior to the accident, of judging of the propriety of the form of construction of defendant’s floor, then, having continued in its employ, he cannot recover.” This request was refused. In Shaw v. Sheldon, 103 N. Y. 668, 9 N. E. Rep. 183, it was held by the court of appeals, viz.: “The majority of the court are of opinion that this judgment should be reversed, for the reason that the facts established beyond dispute that the injured employe entered upon the service and remained in it with a full knowledge and appreciation of the risk and danger resulting from leaving the coupling uncovered. The fact was entirely obvious, the resultant peril plain at a glance, and the injured servant a skilled workman, a foreman of the rollers, accustomed to the machinery and the service, and having the capacity and ability to. fully appreciate the consequences of leaving the couplings uncovered. Within the rule applicable to such cases, the plaintiff’s intestate took upon himself the risk of injury from the observed and obvious omission.” We think the trial judge did not keep within the principle laid down in the case from which we have just quoted. Judgment and order reversed on the exceptions, and a new trial ordered in the county court of Onondaga county, with costs to abide the event. All concur.