
    William T. Doyle, an Infant, Resp’t, v. The Manhattan R. Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Trial—Striking out testimony.
    It is to a certain degree discretionary -with, the trial court as to whether evidence admitted without objection shall be stricken out or not, and hence a refusal to strike out such evidence is not reversible error.
    3. Negligence—Evidence.
    In an action for injuries caused by negligence, evidence to the effect that plaintiff since the accident had headaches every day is competent as evidence of a physical fact which existed subsequent to the accident and did not exist before.
    3. Same.
    A nonexpert witness may testify to the fact that he observed a cast in plaintiff’s eye which was not there before the accident, and the fact that there was no evidence connecting this condition of the eye with the accident is no reason for the exclusion of such testimony.
    Appeal from judgment entered after trial before a jury.
    
      Davies & Rapallo, for app’lt; John C. McGuire, for resp’t.
   Van Brunt, P. J.

All the principal points taken in this case having already been decided in the case of Weiler v. Manhattan Ry. Co., 53 Hun, 372; 25 N. Y. State Rep., 543, it is not necessary to re-discuss the same here.

There are one or two exceptions to evidence which it may be necessary to note.

The plaintiff testified that prior to the accident he had been healthy, and was never sick before the accident; and he was asked : “ Since the accident what has been your condition ? ” His reply was: “I have headaches and bad feelings when I get up in the morning.”

The defendant’s counsel moved to strike out the ansjver as to the bad feelings when he gets up in the morning on the ground that it was indefinite, uncertain, conjectural, and not shown to be connected with the accident, and that there was no proper basis for it The court denied the motion, and an exception was taken.

He was then asked: “Q. You say you have headaches since? A. Yes.”

“Q. How frequently ? ” The question was objected to upon the same ground, the objection overruled, and the witness answered : “ Every day.”

There seems to have been no error in refusing to strike out the testimony which was given, because of which a new trial should be granted, because it is to a certain degree discretionary with the court as to whether evidence once admitted without objection shall be stricken out or not

As to the next question, the witness was testifying to a physical fact which existed subsequent to the accident, and did not exist before. Evidence of this character seems to be entirely competent

Another witness was asked: “ Have you observed the cast in your brother’s eye at present ? ” He answered “Yes.” He was then asked: “ Do you know whether or not that crossing or cast in his eye was there before the accident ? ”

This was objected to as irrelevant and that there was no direct or expert evidence showing that the plaintiff had received any injury which was the cause of any such defect; and upon the further ground that it was not a matter for a lay witness to testify to.

This objection is clearly untenable. Lay witnesses could testify to this physical fact with equal certainty as an expert could, and the fact that there was no evidence connecting this condition of the eye with the accident was no reason for its exclusion. That was a question for the jury to determine whether from the evidence one could be deduced from the other.

The judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.  