Lindemann v. Brooklyn Heights Railroad

WOODWARD, J. The judgment in this case should be affirmed. The appellant urges that “it was not shown by competent evidence [989] that the pain in the back and side and the headaches suffered subsequent to the happening of the accident resulted from this accident, nor that the accident was a competent cause to produce the s,ame.” The evidence of the pain in the back and of the headaches was received without objection or exception, and it is well established that erroneous steps in the progress of a cause are waived unless excepted to before additional steps are taken (8 Enc. Pl. & Prac. 166, and authorities there cited), and the denial of a subsequent motion to strike this evidence from the record was not error of which the defendant could complain. Parkhurst v. Berdell, 110 N. Y. 386, 393, 18 N. E. 123, 6 Am. St. Rep. 384, and authorities there cited; 2 Rum. Prac. 303, and authorities cited. Besides, there was evidence that would support the inference that the pains mentioned by the plaintiff resulted from the accident. Plaintiff’s sister testified that she found her back black and blue, and that she applied the liniment prescribed by the physician for a period of two months; and the physician testified that her head was injured by a scalp wound requiring four stitches, that she was bruised and shaken up; and, a headache developing soon afterward, when the plaintiff had headache only “seldom,” the jury might properly find that the accident was the cause. The case was not within the authority of Hamel v. Railroad Co., 59 App. Div. 135, 69 N. Y. Supp. 166, nor yet of Saumby v. City of Rochester, 145 N. Y. 81, 39 N. E. 715, and the judgment and order appealed from should be affirmed, with costs. All concur.