
    Herman Schuler, Resp’t, v. The Third Avenue Railroad Co., App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Negligence—Street railways.
    While plaintiff was stooping to lift a bundle which he had placed on the front platform of the car the driver suddenly released the brake, which in its recoil violently struck plaintiff’s head, injuring him seriously. Held, that the circumstances were such as to render the submission of the question of negligence to the jury proper.
    3. Same—Evidence.
    Involuntary expressions of pain by the party injured, when made to or in the presence of a physician who is in professional attendance or called in to ascertain the probable extent of the injuries, are admissible in evidence to corroborate the person injured.
    3. Same.
    The complaint alleged that for three weeks after the accident plaintiff suffered and was still suffering pain. Held, that this did not preclude evidence of plaintiff’s present condition or that the pain and suffering continued.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff entered upon the verdict of a jury and an order denying defendant’s motion for a new trial.
    Action to recover damages for injuries sustained by plaintiff, a passenger, while alighting from one of defendant’s street railway cars, through the negligence of the driver in the management of the brake.
    
      Rudolph Dulon, for resp’t; Wm. N. Cohen, for app’lt.
    
      
       Affirming 44 St. Rep., 774.
      
    
   Bischoff, J.

Plaintiff, a passenger, and towards whom, therefore, defendant owed the duty of the “ utmost care and diligence of very cautious persons” under like circumstances to avoid the risk of injury, Maverick v. Eighth Ave. R. R. Co., 86 N. Y., 378, had deposited his bundle of wall paper on the front platform, close to the dashboard, and was about to alight from the car after it had come to a full stop. He stooped to pick up the bundle, and as he did so the driver suddenly released the brake. The brakehandle was left unguarded, and its tensile recoil caused it to come into violent contact with plaintiff’s head, thus inflicting injuries to his left eye and the superorbital nerve.

The driver knew of the bundle and that plaintiff was about to alight; the sudden relaxation of the brake could not have been reasonably foreseen and thus avoided by the plaintiff; and the act of stooping was inevitable to his attempt to regain possession of the bundle. The circumstances attending the accident were therefore adequate for the predication of carelessness of the driver, within the rule above stated, and they also affirmatively established plaintiff’s exemption from any imputation of contributory negligence, though he knew, or ought to have known, of his close proximity to the brake. The facts were thus properly submitted to the jury.

With the weight of the evidence, or the degree of credibility to be attributed to the testimony of witnesses, we have no concern for two reasons, first, because this appeal is from the city court, and its judgment of affirmance is conclusive upon us respecting the matter mentioned, and, second, because the case does not purport to present to us all the evidence which was adduced upon the trial in the court below. Arnstein v. Haulenbeek, 16 Daly, 382 : 34 St. Rep., 297.

Dr. Bailey, called as a witness for plaintiff to prove the extent of the latter’s injuries, was permitted to testify, under objection and exception by defendant’s counsel, to the fact that plaintiff had expressed his physical anguish to him long after the accident and in fact during the progress of the 'trial. It is apparent, however, that these expressions related exclusively to plaintiff’s condition at the time and not to past mental or physical anguish, and were involuntary and instinctive. Under the circumstances the testimony was properly admitted. Davidson v. Cornell, 132 N. Y., 228, 235 ; 43 St. Rep., 887. Such expressions on the part of the person injured, whether vocal or emotional only, are admissible in evidence if made at, or immediately after, the time the injuries were sustained as constituting part of the res gestae, Smith v. Dittman, 34 St. Rep., 403 ; Kennedy v. R. C.& B. R. R. Co., 130 N. Y., 654, 656; 41 St. Rep., 329, and they are of necessity equally admissible when made to, or in the presence of, the physician who is at the time in professional attendance upon the person injured or called in to ascertain the probable extent of the injuries. Werely v. Persons, 28 N. Y., 344; Brown v. N. Y. Cent. R. R. Co., 32 id., 600; Matteson v. N. Y. Cent. R. R. Co., 35 id.; 487, and see cases collated in Rice on Evidence, vol. 1, pp. 377-380.

Roche v. Brooklyn City & Newtown R. R. Co., 105 N. Y., 294; 7 St. Rep., 361, cited by appellant’s counsel, is to the effect only that expressions of .physical suffering, when not a part of the res gestee, are not admissible to corroborate the person injured if made to persons other than the attending physician or the medical examiner or surgeon called as an expert to prove the extent of the injuries sustained. The distinction is not only reasonable, but necessary. The extent of the injuries, and the consequences which with reasonable certainty will attend them, are matters peculiarly within the knowledge of the medical expert. Physical, as well as mental, anguish of the person injured must necessarily enter largely into the measure of those consequences, and" its presence is more or less dependent upon his physical and mental strength and endurance. It may therefore not always be externally perceptible. If it is, its perceptibilite is circumscribed by the degree of endurance.

The injuries may be wholly organic, and therefore incapable of visible or tactile discernment. If, then, expressions of existing mental or physical anguish which instinctively or involuntarily escape the person injured in the presence of his physician, or the medical expert who is called to qualify himself as a witness to the probable extent of the injuries, are to be excluded from his consideration, because anguish may be feigned, or expression mere pretense, instances of injuries which are incapable of ocular or tactile demonstration would be precluded from adequate redress.

One other objection is urged on this appeal against the validity ■of the judgment. Counsel for appellant contends that it was error to admit the testimony of Dr. Daily as to the condition of plaintiff's eye at the time of the trial, and that of plaintiff to the effect that the pain and suffering attending his injuries had continued. The complaint alleged that for a period of three weeks subsequent to the time of the accident plaintiff had suffered, and was still suffering pain, and because of this allegation defendant’s counsel objected to the introduction of the testimony on the ground “ that the pleadings are confined .to the injuries within the period of three weeks following the accident; also on the ground that the evidence is a surprise to the defendant.” It is apparent that counsel has confounded the result with the fact of the injuries. The injuries alleged in the complaint are those sustained on August 22, 1888, and these only could constitute ground for recovery in this action; but the general allegation of damage therefrom entitled plaintiff to recover, not only for the pain and suffering endured up to the time of trial, but for such as yet remained to be endured. Ransom v. N. Y.& E. R. R. Co., 15 N. Y., 415; Curtis v. R. & S. R. R. Co., 18 id., 534; Filer v. N. Y. C. R. R. Co., 49 id., 42 ; Sheehan v. Edgar, 58 id., 631; Feeney v. L. I. R. R. Co., 116 id., 375, 382 ; 26 St. Rep., 729.

The judgment of the general term of the court below is affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.  