Savage v. Third Avenue Railroad

Olcott, J. This is an appeal from a judgment in favor of the plaintiff for $912.44, entered at a Trial Term, and from an order denying a motion for a new trial. The plaintiff sued for injuries alleged to have been received while entering an open car of the defendant on June 15, 1896, by the improper starting of the car before he had a chance to properly board it, causing injuries to his left foot and ankle. During the impaneling of the jury, defendant’s counsel called the attention of the court to the fact that he had examined the foreman of the jury, who acknowledged that he had witnessed an accident and that “ if the present case should turn out to be similar it might prejudice him as against the defendant company,” and, therefore, defendant’s counsel challenged the juror for cause. The challenge was overruled and defendant duly excepted; there-' upon defendant’s counsel challenged peremptorily, and the challenge was allowed; but the peremptory challenges had not all been exhausted when the jury was sworn; and that circumstance makes the defendant’s exception to this ruling unavailing. People v. Larubia, 140 N. Y. 87. [428] We regard no other exception in the case to be worthy of discussion except those to be found in the following excerpts from the record of the testimony of a physician who had treated the plaintiff after the accident: “ Q. Did you ever before this time treat a patient suffering with a similar injury as the plaintiff has suffered? A. Tes, sir. “ Q. How many times? A. I will say from twenty to forty. “ Q. Can you tell us with reasonable certainty, basing your answer upon your experience as a physician and surgeon, and after the personal examination made by you of this plaintiff, whether having suffered from a sprained anlde, such as has been described by him, he would be apt to suffer such pains and sensations as testified to by him this morning? “ Objected to as incompetent and speculative, and, further, that it is not before the jury as to what the doctor’s opinion is based upon. Objection overruled; exception. “ A. Tes, sir. “ Q. Can you tell us, with reasonable certainty, how long he is apt to have those pains? “ Objected to as incompetent and as being too speculative; objection overruled; exception. “ A. He may have them during his lifetime. “ Defendant’s counsel objects and moves to strike out the answer as not being sufficiently definite, and, also, as being speculative. “ Motion denied; defendant excepts.” We somewhat regretfully state our conclusion that this portion -of the record contains reversible error, because it is by no means clear that the answers above quoted had much bearing upon the size of the verdict. But we are unable to say that the evidence in question may not have biased the jury and influenced the result, and, therefore, the reversal of the judgment is necessary. Baird v. Gillett, 47 N. Y. 187; Furst v. Second Ave. R. R. Co., 72 id. 547. The evidence was too conjectural, indefinite and speculative, and the defendant’s motion to strike out the answer should have been ■granted. Elsas v. Second Ave. R. R. Co., 56 Hun, 161; McClain v. Brooklyn City R. R. Co., 6 N. Y. St. Repr. 49; Dawson v. City of Troy, 49 Hun, 324; Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305; Lewis v. Brooklyn El. R. R. Co., 7 Misc. Rep. 286. Oounsel for the respondent seeks to justify the answer above quoted, “ He may have them during his lifetime,”- by the form of the question to which it was an answer: “ Gan you tell us, with [429] reasonable certainty, how long he is apt to have those pains? ” Bnt we think that the form of the question makes the answer worse instead of better. Had the question been, “ How long will he have • those pains? ” and then had the answer been what it was in the case at bar it would have been necessary to strike the answer out as being too speculative to endure the test of the decisions. And the form of the question in the case at bar adds a double speculation to that contained in the answer instead of making the answer less speculative, as the respondent’s counsel claims. The judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event. McCarthy and Scotchman, JJ., concur. Judgment and order reversed and new trial ordered, with costs to appellant to abide event.