
    Elise Grotsch, Respondent, v. Steinway Railway Company of Long Island City, Appellant.
    
      Negligence — a passenger, compelled to stand up in a trolley ca/r', thrown down became the car started violently and the hand strap was defective — injuries aggravated by neglect in medical treatment.
    
    What evidence tending to show that a woman-, who could obtain no seat in a trolley car, was thrown down, both because of the breaking of a strap she had grasped, which had become worn where its loop came in contact with- the rod from which it-was suspended, and also because the car was started with great • violence, is sufficient to require the submission to the jury of the question as to whether the corporation operating the car was negligent, considered.
    
      Where, in such a case, a motorman testifies, in substance, that the proper method of starting such a car is to put on one point of power, and after the lapse of ten seconds to put on another point, and that putting on more than one point at a time would be apt to throw people down and injure them, it is proper for the juiy to decide the cause of the violent starting of the car.
    A person injured by an accident cannot recover damages for any aggravation of physical ailments which has been caused by a neglect in the medical treatment of the injury.
    Appeal by the defendant, the Steinway Railway Company of Long Island City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of January, 1897, upon the verdict of á jury, and also from an order entered in said clerk’s office nunc pro tuno as of the 26th day of January, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    The jury rendered a verdict in favor of the plaintiff for $1,500.
    
      Eugene L. Bushe, for the appellant.
    
      James P. Niemann, for the respondent.
   Patterson, J.:

The plaintiff in this action sustained in juries while a jiassenger on one of the defendant’s cars on the 2oth day of August, 1895. At about eight o’clock in the evening of that day she, in company with other persons, boarded the car at Vernon avenue, near Bodine street, in Long Island City. When she entered the car all the seats were occupied, and she was compelled to stand in the aisle and take hold of one of the straps suspended from a rod, in the manner usual in public conveyances on. street railways. The car was moved by electricity on the trolley system. Some of the persons who entered the car with the plaintiff were also obliged to stand, taking various positions in the aisle of the car and on the platform. When the car started the plaintiff, with other passengers, was thrown down upon the floor. She was lifted up, a seat was surrendered to her, and she continued her journey to the Long Island City ferry, but she did not make any complaint to the conductor of the car, nor was any notification of her injury given to the defendant until after this action was brought.

It was sufficiently shown by the evidence that the car upon which the plaintiff was a passenger belonged to the defendant. The plaintiff swears that it was car No; 14, and that the conductor’s badge displayed the number '98. She states that the accident happened about eight o’clock in the evening. There is evidence to show that at about that time the defendant’s car No. 14 was at or near the point at which the plaintiff entered the car. There were six cars in operation on the defendant’s road that night, and from the time bills, of the cars in operation on that evening it is substantially proven-that the plaintiff was accurate in her statement as to the. number of the car. The negligence attributed to the defendant’s servants in the management of the car is of a twofold character: First, the-defective condition of the strap; and, secondly, the improper starting of the car. The strap was shown in evidence, and it appeared, to have been worn at that part where the loop came in contact with the rod from which it was suspended. Two of the witnesses called by the defendant, to whom the strap 'was shown on the trial, recognized that it: was worn and that it was not in good condition,, although they-thought it was sufficient to stand a weight of 200-, pounds. 'Whether it was sufficient to stand á .strain such as it would be subjected to upon a sudden jerking and when held by a person, weighing 190 pounds (which was the weight of this plaintiff), does-not fully appear. Nor is it conclusively shown that the condition, of the strap, even if it were insecure, was such as could have been discovered by inspection; but that was properly submitted to the-jury. It was shown that the car was inspected on the morning of' the twenty-fifth of August, and the straps as well as the other appliances were examined. How thorough that inspection was is not disclosed. The evidence is not-in a very satisfactory condition, although, there was enough to authorize the conclusion that the company was negligent with reference to the strap; but- as to. the starting of the-car, the proof of negligence was, beyond doubt, such as to require the submission of the question to the jury. The testimony is abundant upon that subject. Several witnesses testify that the car was-started with great violence, and the inference is fair that that violence could not have been the result of anything else than the-improper application of the power to move the car. It was so great'that several of the passengers inside the. car were thrown on the-floor; and the witness Rohrecker testifies that as he reached the floor of the car the jerk was given ; the passengers fell hack against him, and that he put out his hands to hold them back, and by that means saved a child from having its head crushed. Other witnesses testify to the excessive force with which the car was started. That this must have been the result of negligence is the reasonable inference, and in this respect the case is entirely distinguishable from Black v. Third Ave. R. Co. (2 App. Div. 387). In the present case, there is testimony of a motorman as to' the proper method of starting a car operated on a trolley system. He swears that the ordinary and proper way is, when the power is first applied, to put on one point and the car will move slowly; “ the.car moves gradually ” and there won’t be enough force * * * to throw anybody down-standing up.” After the lapse of ten seconds it is proper to put on another' point of power. Putting on more than one point at a time I am' apt to throw people down and injure them.” It is just that situation which the plaintiff claims to have existed on this occasion and to have caused this injury. The effect produced was precisely that which would have followed the putting on of more than one pointand it was properly left to the jury to say what was the cause of the violent starting of the car, in view of this testimony and of the evidence that a certain thing happened which would be the necessary result of the application of more power, to move the car than was safe and prudent in starting it.

There is nothing in the case to show contributory negligence on the part of the plaintiff. There was no seat she could occupy when she entered the car, and she stood in' the aisle using the ordinary support furnished by the company for persons so situated.

The exceptions to the rulings of the court on the trial are not well taken. The case was very carefully conducted by the justice presiding, who, in a clear charge, instructed the jury upon the questions of law substantially as requested by the defendant’s counsel. In the main charge, a statement was made, to which exception w'as taken, that the defendant corporation was responsible for the acts of its servants under ordinary circumstances; and it is now contended that that proposition was erroneous and misleading. But if there were any inaccuracy in the expression of the court, the attention of the jury was subsequently and specifically called to what the judge meant, as follows: “ I do not mean to say that a. corporation is responsible at all times for every and all acts of its servants; that is not true as a general proposition-. If there is any liability in this case, it is because, first, the servant of the defendant started .the car too violently, too suddenly, with too much force, and, therefore, did ’ not exercise the proper skill .and prudence required of him.' under the circumstances, and, in the second place, that ■ the inspectors employed by the defendant-did not do their duty and discover an ascertainable defect.” This was so clear, pertinent,, direct and positive that its meaning could not be mistaken. .The learned' judge properly instructed the jury concerning the consequences of the injury as affecting the question of the measure of damages. He told them that, if the physical ailments resulting from the injury had been aggravated by any neglect in the treatment of them in the early stages of the injury, they must eliminate all such conditions from consideration; that is to say, such additional aggravation, pain and suffering, as the failure to treat the wounds properly in the beginning may have brought about. There was some question in the case as to the want of proper care and attention to the wounds between the twenty-fifth and the twenty-eighth of August, on which latter date the doctor was called in, and the instruction given to the jury on that topic was as favorable to the defendant as it could reasonably have expected.

The only exception taken, to rulings of the court on evidence that requires consideration is that which applies to a question asked Dr. Burnett, a witness called on behalf of the defendant. He testified that in November, about three months after the accident happened to the. plaintiff, he examined her pursuant to an order of the court, and he states that all he discovered as indicating injuries were two-small scars on the back of the thigh, one about the middle of the thigh and the other about the top of it; that they were then in a healed condition and nothing but the two scars remained; that there was no evidence about her limb of any other injury than the two scars mentioned.. He was then asked the question if, in his opinion,, the wounds were of such a nature that they could have been sustained by a person falling on the floor of a street car, which floor was covered with a wooden grating, and from which no points, bolts or nails projected. This question was excluded as incompetent and improper, to which the defendant excepted. The witness was asked by this question to give' his opinion, and his opinion merely. It is not to be doubted that witnesses skilled in any science or art, or who possess experience or special knowledge upon a particular subject of inquiry not possessed by jurors, may testify not only to facts but may give their opinion as- to such facts (Van Wycklen v. City of Brooklyn, 118 N. Y. 429), and may even do so in many cases where the opinion asked for directly affects the whole issue involved in the case. (See authorities referred to in the case last cited.) But where opinion testimony, so called, is to be jiresented to a jury in such a case as this, that ojflnion should be based upon all the elements essential to its formation, if the opinion asked for goes to the whole issue, as is the situation "here. This witness was testifying from two sources of knowledge: first, his observation made upon an examination of the injured limb of the. plaintiff; secondly, from the history of the case, as he learned it from the physician who attended the plaintiff and treated her for the injuries she sustained by the accident. The question was evidently directed to eliciting an opinion that scars which would result from an incised wound or puncture of the flesh, could not have been caused by injuries sustained by the plaintiff falling upon a flat surface or upon such a grating as that on the floor of the car, from which nothing protruded. It may be said that the jury could judge of that fact as well as a skilled physician, but from this question is carefully excluded that which is a most important feature of the testimony of Dr. Burnett himself. The presence of the scars upon the thigh of the plaintiff is fully accounted for, irrespective of the 'circumstances of her' falling upon the floor of the car. That such a fall would produce simply a contusion of the flesh seems to be obvious, but Dr. Burnett knew, and his own evidence discloses that he knew, that those scars were the result of surgical treatment, for he says, with reference to these evidences of incised wounds: In the condition that the doctor explained to me, there was a good deal of, you might say, dead necrotic tissue that he cut awayP That statement in Dr. Burnett’s testimony immediately precedes the question as to his opinion now under consideration. With that fact appearing as part of the history of the case, his opinion was formed concerning blood poisoning, being the result of the want of proper .attention to the wounds. It was- not proper to ask his opinion concerning the nature of the wounds as indicated by the scars, simply in connection with the fall upon the grating. He was speaking only of the scars, and he had accounted for their jiresence. An answer to the question would have misled the jury, and under the special circumstances of this case and the course of the previous examination of this witness, the court was right in not allowing that question to be answered.

The amount of the verdict was not excessive under all the cir.cumstances and the- judgment and order appealed from should be affirmed, with-costs.

Van Brunt, P. J., Williams, O’Brien, and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs. •  