
    (90 App. Div. 69.)
    HIGGINS v. UNITED TRACTION CO.
    (Supreme Court, Appellate Division, Third Department.
    June 30, 1904.)
    1. Experts—Opinion Evidence^Speculative Damages.
    In an action for injuries, a question asked of a medical expert as to whether an injury, such as plaintiff received on the day in question, would be “likely to produce the condition” related to the witness, was-objectionable as calling for speculative evidence on the issue of damages.
    Parker, P. J., dissenting.
    Appeal from Trial Term, Rensselaer County..
    Action by Jennie Higgins against the United Traction Company. From a" judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.
    Reversed.
    The plaintiff has sued the defendant for damages for negligence. Her claim is that, in alighting from one of the defendant’s cars, the car started up before she had left the same, thereby throwing her to the ground and injuring her. The jury rendered a verdict in her favor for $1,000. From the judgment entered upon this verdict, and from an order denying defendant’s motion for a new trial, this appeal is taken.
    Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.
    Patrick C. Dugan, for appellant.
    Thomas E. Powers, for respondent.
   SMITH, J.

Upon the trial of this action one Morris, a physician, was called in behalf of the plaintiff. In a hypothetical question, which assumed as true certain facts claimed to have been proven by the plaintiff, he was asked: “What would you say produced the condition in which you found this woman upon your examination ?” To this he answered: “An injury could produce that condition.” Thereupon the witness was asked by plaintiff’s attorney: “Would an injury such as she received upon that day be likely to produce the condition which I have related to you?” ■ This was objected to by defendant’s counsel as speculative, incompetent, inadmissible, and not based upon a reasonable certainty, or upon the facts proven. The objection was overruled, the defendant excepted, and the witness answered: “I say, yes; it would.”

In Strohm v. N. Y., L. E. & W. R. R. Co., 96 N. Y. 305, Rapallo, J., in writing for the cotirt, says:

“Consequences which are contingent, speculative, or merely possible are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.”

In Bellemare v. Third Avenue Railroad Company, 46 App. Div. 557, 61 N. Y. Supp. 981, the headnote reads:

“In an action to recover damages for personal injuries, it is improper to permit a physician, who examined the plaintiff some three years and eight months after the accident, and found that certain ribs on his left side were fractured, to testify, in answer to the question as to whether the injuries would be permanent, that ‘there is likely to be a certain loss of strength of the affected side, but the principal danger lies in the complications that may result from chronic pleurisy, which exists in this man’s case,’ and that such complication ‘is liable to occur; it may and may not,’ as such testimony is conjectural and speculative; there being no reasonable certainty that the anticipated consequences will result.”

In that case the Strohm Case was referred to and relied upon, the court holding that it is not proper to testify as to consequences which “are likely to develop.” While the term “likely” has in it to a certain extent an element of probability, it thus seems to have been held that it is not strong enough to make proper evidence facts which are likely to occur. The holding seems to be that there should be a stronger indication of a probability to a reasonable degree of certainty before a jury could be authorized to award damages therefor. For this error the judgment must be reversed. It is unnecessary, therefore, to examine the other errors charged to have been made upon the trial.

Judgment.and order reversed, and new trial granted, with costs to appellant to abide the event. All concur, except PARKER, P. J., who dissents.  