Ramson v. Metropolitan Street Railway Co.

O’BRIEN, J. The question of plaintiff’s contributory negligence does not arise, it being conceded that she was seated as a passenger in the car when the accident happened. The defendant’s negligence is predicated upon the fact that the car suddenly and violently left the track and tilted to one side, throwing the plaintiff to the floor, and causing her injuries. This fact, together with evidence that the [590] track at the place was being changed to electric service, that cobble stones were removed, that sand was piled along the track, a trench dug, and barrels of gravel were present, and that a barrel of gravel was the obstacle encountered by the car, causing it to be thrown from the track, justified the inference that the driver was negligent in his failure to observe due care in the operation of the car. The mere fact of derailment is not sufficient (Stevenson v. Railroad Co., 35 App. Div. 479, 54 N. Y. Supp. 815); but this, together with evidence as to its cause, from which the inference might be drawn that the defendant’s act or negligence produced it, is sufficient to present a question for the jury upon the subject of defendant’s liability. Hastings v. Railroad Co., 7 App. Div. 312, 40 N. Y. Supp. 93; Pollock v. Railroad Co. (Sup.) 15 N. Y. Supp. 189. A case somewhat similar to this is that of Hollahan v. Railroad Co., 73 App. Div. 164, 76 N. Y. Supp. 751. Thefe a passenger standing on the front platform of a horse car was thrown to the street at a place where side tracks led into the defendant’s stables, and the car swerved to that side, and a recovery was upheld. Here, as there, the jury were not left to speculate as to the cause of the accident, but a reasonable and almost conclusive basis was established for the finding that the defendant was negligent in permitting the track to be and remain in a dangerous condition, and that such an accident should have been anticipated and avoided. A barrel of gravel which is only two feet from the track, and placed upon a sand pile, beside which there is a trench, is in such a situation that it is very likely to be struck by the running board attached to the side of an open car, which itself projects some distance over the track. This is taking the driver’s version that the barrel moved; which, however, he does not know, as he did not see it,; and a fair inference is that the barrel was left by the defendant too near the track, and in the way of the car, or was so left that it got upon the track, and thus caused the accident. The more serious question presented relates to the alleged error in the admission of evidence, it being claimed that, in view of the allegations o'f the complaint, it was improper to permit the testimony to be given of the particular injury, caused by the accident, from which the woman suffered, and which rendered her incapable of bearing children. The complaint, it is true, does not contain allegations of injury which would show that specific injury; nor can it be concluded t-hat such an injury was necessarily caused by the accident. The general rule is that injuries which necessarily flow can be proved, but that those which may naturally flow cannot be proved unless specially pleaded. Geoghegan v. Railroad Co., 51 App. Div. 369, 64 N. Y. Supp. 630. The testimony as to plaintiff’s particular injury was,' therefore, inadmissible under the pleadings; but upon an examination of the record we find that the plaintiff herself was permitted, without objection or exception, to fully state her physical ailments which followed the accident; and that her physician corroborated her statement, also without objection; and even when the hypothetical question was asked him objection was not made that such matter was not pleaded. It was when another phy [591] sician was called, and was asked a similar question, which he did not answer positively, so as to show that the fall did cause the specific injury mentioned, that the objection was first made that the pleadings did not permit such evidence to be given, and only on cross-examination did he say that the fall had caused inability to bear children. Though we concede the rule to be that, where incompetent evidence is admitted in the first instance without objection, and a subsequent effort is made to get in the same evidence over objection, it is the duty of the court to exclude it, and its admission is error, still the fact that it has once been admitted has an important bearing upon the question whether or not the subsequent admission under exception was prejudicial to the party against whom it was offered. In that light the record is to be further examined for the purpose of determining whether the admission of the evidence constitutes reversible error. In civil cases the presumption is that all incompetent evidence is harmful, and it is only where it appears clearly that it was not harmful that it can be disregarded by an appellate court. Starting,, therefore, with the presumption that the objectionable testimony was harmful, we approach the consideration of the exception with a view to determining whether or not upon this record it appears that such presumption is overcome by circrynstances which show that in fact the evidence was not prejudicial. It might very well be contended that no prejudicial evidence on the subject of the plaintiff’s special injuries was admitted under exception, properly taken, that it was not within the pleadings; because, when such exception was taken, the testimony adduced was vague and conditional, and it was not in fact until the cross-examinatian that one of the physicians positively stated that the plaintiff’s fall caused inability to bear children. It appears further that the testimony which without question was properly admitted supports the finding that the defendant was negligent, and would support a much larger verdict. This verdict is not excessive compensation for the injuries which it was shown necessarily flowed from the accident. As stated, á verdict for a much larger amount, based solely on the testimony which was clearly competent, would be warranted. The plaintiff is content .with the verdict, and the defendant upon a new trial could not hope, if its liability were established as here, to escape with the payment of a smaller amount. Upon an amendment of the pleadings the evidence now assailed would be admissible, and the probabilities would be favorable to a larger verdict. The defendant would thus gain nothing by a new trial, and, as the plaintiff has not appealed, it would serve no useful purpose to add to the retrial of causes and to the clogging of our calendars by granting one on account of what at best is to be regarded as a good formal exception to evidence which the record shows was not harmful. We think, therefore, that the judgment and order should, be affirmed, with costs. PATTERSON and LAUGHLIN, JJ„ concur.