
    John Cronin, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence—an injury not pleaded cannot be proved—if Vie injury is established . without objection further proof thereof does not constitute error.
    
    Where the complaint in an action to recover damages for personal injuries sustained by the plaintiff does not aver any injury to the plaintiff’s ribs, testimony tending to establish such an injury as a basis for an award of damages is inadmissible.
    
      Semble, that if, in such a case, the fact that the plaintiff sustained an injury to his ribs is established without objection, error cannot he predicated upon the reception of further evidence tending to show the existence of such an injury. Patterson, J., dissented.
    Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1902, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 6th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Arthur Ofner, for the appellant.
    
      Julius 11. Cohñ, for the respondent.
   Hatch, J.:

This action was brought to recover damages sustained through the alleged negligence of the defendant, its servants and employees. Upon the 16th day of June, 1898, at about five o’clock, p. m., as plaintiff was driving east through Seventy-ninth street, he was struck by one of the defendant’s north-bound cars while attempting to cross Madison avenue. The plaintiff testified that he was driving at "a slow trot, with the horse under full control; that as he reached the corner of Madison avenue, he looked south and saw the northbound car approaching at about' the north side of the crossing of the block below; a south-bound car passed in front of him and he drove directly behind this car; as he drove upon the track he saw the north- . bound car about twenty-five feet away from him. He attempted to •hurry across, but the car struck the rear wheels of the wagon; he was thrown violently to the ground and received the injuries complained ■of;. The proof was quite conflicting. The evidence upon the part of the defendant tended to establish that the plaintiff drove directly in front of the car in such close proximity to it that the motorman was unable to stop the same, and that the horse was struck by the fender of the car just as it entered upon the crossing. It is not necessary now to determine whether the verdict of the jury should ■ be set aside as being against the weight of evidence. Upon the testimony as given, a case was presented which required its submission -to the jury, and as we conclude that the judgment must be reversed for error committed upon the trial, it is not necessary' to further discuss the evidence or its effect. The plaintiff testified without ■objection as follows: “I could tell that my ribs were broken by the feeling of my left side; feeling that I couldn’t stoop at all on it. There was and is a bunch there outside the ribs. * * * It felt sore ever since it happened. I could not lie on it at night. If I touched ■it it felt sore. I couldn’t lay. on it. It was tender to the touch.” He further testified that he had trouble in breathing.- Every time he drew a breath, for a while after the accident, it would catch lnm, pincb; that he could not stoop over with it and had dizziness and pain in his head. Thereafter plaintiff called Dr. Richardson, who had examined him sometime in January or February, 1902, which was the first time the witness saw the plaintiff, and this was over three years after the occurrence of the accident. The plaintiff then complained of constant headache, dizziness in stooping, confusion of ideas and deafness and was easy of irritation. This the doctor ascribed as resulting from the injuries to the head. He was then asked ■:• “ Q. Will you state the symptoms of a fracture, to the ribs, two or three ribs on the side?” This was objected to as not pleaded. The objection was overruled, to which defendant took an exception, and the doctor testified that the symptoms of- a fractured -rib would be tenderness on pressure over the site of the fracture-; pain, on-a full inspiration or by deep breathing,, and possibly a cough. Thereupon the defendant moved to strike out the testimony upon the same ground, which motion was. denied and an exception taken. The physician then testified: I examined his ribs at the time I examined him; three months ago, about.” The physician was unable to testify as matter of fact that the ribs had been fractured, but gave evidence tending to account for the existence of a tumor then in plaintiff’s side, the effect of which was to show. that such tumor might have been produced by a spiculte, or small portions of the bone, which had broken out. It is'evident from the testimony of the physician that he was unable to determine whether the ribs had been broken or not, the effect of his testimony upon such, question being to show what the symptoms of a broken rib were, and to that extent to corroborate the plaintiff in his statement that he knew his ribs were broken, and also to account for the existence of the tumor. At the close of the proof the defendant moved to strike out all of the testimony as to the existence of the tumor on the ground that it was unconnected with the accident. This motion was.granted by the court and the plaintiff took no exception thereto, The defendant at the same time asked the court to strike out the evidence relating to the fracture of the ribs of the plaintiff upon the ground that Dr. Richardson . did not discover any fracture of the ribs, as the tumor was over the site where the claimed fracture would exist, and that it was too conjectural to warrant the submission of any such question to the jury. We are of opinion that the objection interposed to the testimony given by the physician as to the fracture of the ribs should have been sustained and that the testimony relating thereto should have been stricken out.

The complaint did not aver any injury to the ribs as furnishing a basis for an award of damages; consequently, testimony tending to establish such injury as a basis of recovery was inadmissible. (Geoghegan v. Third Ave. R. R. Co., 51 App. Div. 369.) If the injury to the ribs had been conclusively established by the testimony of the plaintiff, or if it was otherwise conceded in the case, then it would not have been error to have received the testimony of the physician, for the reason that such injury being conceded, the testimony competent and only inadmissible because not pleaded, error could not be predicated of its reception after the fact had been established without objection. (Jones v. Niagara Junction R. Co., 63 App. Div. 607.) This rule, however, cannot be applied to this case for the reason that the testimony of the plaintiff did not establish that his ribs were • broken. His testimony • was that he Knew his ribs were broken from certain symptoms, which he proceeded to describe. These symptoms might, or might not, have indicated broken ribs. Some of them were, connected with the injury to the head, and taking into consideration everything bearing thereon, to which the plaintiff testified, it was quite uncertain, whether the injury to .the ribs was established by his testimony. In addition to this,- the credibility of his statements was for the' jury, so that at the time when the objection was interposed to the physician’s testimony,, it was neither conceded 'nor established that the plaintiff’s ribs were broken as a result of the accident. As a consequence an entirely different question was. presented from that which occupied the attention of the "court in the case last cited; for therein the specific injury had been conclusively established and was in nowise disputed, either at the time when the testimony was offered, to which the objection was taken, or at any other time. Here, before such injury was established, the plaintiff interposed the objection. We think it was error to overrule it. "When all evidence as to the existence of the tumor was stricken from the case, the evidence of the physician upon the question as to whether the ribs were broken was purely conjectural and the evidence in that connection should have been stricken, out.

It follows that the judgment and order should be reversed and a new trial granted, with costs to the.appellant to abide the event.

Y an Brunt, P. J., and McLaughlin, J., concurred; Laughlin, J., concurred in result; Patterson, J., dissented. "

Judgment and order reversed, new trial ordered, costs to. appellant to abide event.  