
    Michael Popp, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Negligence — Nonsuit.
    Where the case does not show gross and inexcusable negligence, a motion to nonsuit on the ground of contributory negligence is properly denied.
    3. Same — Evidence.
    A physician who has attended the plaintiff for the injuries complained of may be allowed, after describing bis condition to the time of the trial, to give bis opinion whether the pain will continue.
    
      H. Same.
    Under an allegation that the injuries rendered the plaintiff “incapable of labor,” evidence as to the value of his customary earnings may be given although special damages are not otherwise alleged.
    Appeal from a judgment entered on the verdict of a jury at -the Monroe circuit, and from an order of special term denying the defendant’s motion for a new trial on a case and exceptions.
    Action for personal injuries. Plaintiff was a market gardener, and while attempting to cross the defendant’s tracks with his wagon and team, the rear part of the wagon was struck by the “limited” train and plaintiff was injured.
    It appeared that for some distance from the crossing the view was obstructed by trees and buildings; that there was a cut. The plaintiff listened for trains, but heard none. He drove slow at first and then shot right in the cut. He looked to the east, where a switch engine was kept, and then turned to look west, when the horses became frightened and sprang forward and the engine .struck the back of the wagon, cutting it in two. It also appeared that there was no place where plaintiff could have turned or backed out.
    A motion to dismiss on the ground of contributory negligence was denied.
    
      A. H. Harris, for appl’t; W. iS. Oliver, for resp’t.
   Dwight, J.

After a careful perusal of tne evidence in this case we come to the same conclusion as that reached by the trial judge, on the motion at special term, that the case furnishes no exception to the rule so constantly declared in cases of this character, that where any inference is to he drawn from the evidence hearing upon the question of contributory negligence, that inference must be drawn by the jury. Weber v. Railroad Co., 58 N. Y., 451; Stackus v. Railroad Co., 79, N. Y., 464; Sherry v. Railroad Co., 104, N. Y., 652, 5 N. Y. State Rep., 574; Parsons v. Railroad Co., 22 N. Y. State Rep., 697, 702.

In the last case cited the court by Ruger, Ch. J., after defining, in familiar language, the degree of care to be required of the party injured, say “ This rule must in all cases, except those marked by gross and inexcusable negnligece,. render the question involved one of fact for the jury.” The case at bar was not within the exception thus strictly defined." The motion for a non-suit, on the ground of contributory negligence, was properly denied.'

The two remaining exceptions relate to rulings upon questions of evidence.

A physician, Dr. Jones, who had treated the plaintiff for the injuries complained of, after describing those injuries and the condition of the patient down to the time of the trial, was asked ,by the plaintiff, “judging from the length of time the pain had lasted since the injury, state whether you think it highly probable— reasonably certain — that it ’will continue ? ” The question was objected to by the defendant “as too speculative and remote.” The objection was overruled and the defendant excepted. The witness answered: “I think the chances of his not getting and

being perfectly free from pain and trouble with that side, after this length of time, would be in favor of his not getting well; I think there will be more chances' of his not getting entirely well than of his getting entirely’well.”

Counsel for the defendant moved to strike out the testimony, which was refused, and an exception taken. At the opening of the court the next morning counsel for the plaintiff asked that this testimony be stricken out. The court complied with the request and instructed the jury to disregard the evidence in question, to which ruling and instruction counsel for the defendant excepted. In its charge, also, the court instructed the jury that the testimony of Dr. Jones on the question of the probable permanence of the plaintiff’s injuries had been stricken out of the case, and was not to be considered by them at all.

We think, under the authority of Griswold v. R. R. Co., 23 N. Y. State Rep., 729, that the evidence objected to was properly received. In that cáse the court, by Finch, J., distinguishes the cases of Strohm v. R. R. Co., 96 N. Y., 305, and Tozer v. R. R. Co., 105 N. Y., 617; 6 N. Y. State Rep., 447, and points out the obvious difference between an opinion as 'to the permanence of a disease or injury already existing, capable of being examined and studied, and one as to the mere possible outbreak of new diseases or sufferings having their cause in the original injury.” We think the opinion testified to by Dr. Jones in this case was clearly within the former category, and not the latter, and was, therefore, properly received in evidence. The request of counsel for the plaintiff to strike it from the case was probable made for greater caution.” The exception of the defendant to the ruling striking out the evidence was, of course, unavailing and its exception to the original ruling by which it was admitted, was not well taken under the authority of the case of Griswold, supra.

• Evidence was received of the value of the plaintiff’s customary earnings. It was objected to on the ground that no cause of action for special damages was alleged in the complaint. The objection was not well taken. The complaint did allege that the-injuries complained of rendered the plaintiff “incapable of labor,” and the rule seems to be established that evidence of loss of time,, and, consequently, of the value of time lost, is admissible under an allegation of general damages. Ward v. Vanderbilt, 4 Abb. Ct. App. Dec., 521; Leeds v. The Metropolitan Gas Light Co., 90 N. Y., 26; Cabot v. McKane, 1 N. Y. State Rep., 495. We think, moreover, that the allegation in this complaint of inability to labor produced by the injury, was sufficient to bring the case within, the doctrine of Ehrgott v. The Mayor, etc., 96 N. Y., 275.

The judgment and order appealed from should be affirmed.

Barker, P. J., and Macomber, J., concur.  