
    Bina F. Brown, Respondent, v. The Manhattan Railway Company, Appellant.
    
      Negligence — what allegations as to injuries sustained by the plaintiff do not sustain proof of gastritis—a disease, if not the necessary result but the natural result of the injuries alleged, must be specially pleaded —charge as to the effect of the statute providing that all passengers be permitted to board an elevated train—presumption as to a party’s attempting to bribe a witness to give false testimony.
    
    Where the complaint in an action to recover damages for personal injuries alleges that the plaintiff “ sustained a severe lacerated wound of the thigh which extended to the periosteum, dividing the nerves and blood vessels of the same, so that she suffers loss of sensation and impeded circulation in the part, and is unable to use leg as before the said injury, and that her nervous system received a severe shock by the said accident from which she has not recovered * " * and that she is seriously and, as she is informed and believes, permanently injured in consequence of the aforesaid,” proof that the plaintiff suffered from gastritis is incompetent, as, even if it be conceded that gastritis is the natural result of the injuries alleged in the complaint, it is not a necessary result, and, therefore, must be specially pleaded.
    The judge presiding at the trial of an action to recover damages for personal injuries, sustained by the plaintiff while attempting to board an elevated train in the city of New York, in consequence of the alleged premature starting of such train, should, when charging the jury as to the effect of section 138 of the Railroad Law (Laws of 1890, chap. 565), which provides that no elevated railfoad train shall be peimitted to start until every passenger upon the platform or station, desiring to board or enter the train, shall have actually boarded or entered the same, instruct the jury that if they find that the law has been violated they may consider that fact in connection with the other evidence bearing upon the defendant's negligence. It is improper for him to instruct the jury, as a matter of law, that the defendant is presumed to be negligent if it violates the statute in starting the train.
    
      Semble (per McLaughlin and Laughlin, JJ.), that evidence, tending to show that a party to an action tried to bribe a witness to give false testimony in his favor, is competent as an admission that his case is weak and- his evidence dishonest; that such evidence does not create a presumption one way or the other, but simply permits the jury to infer from it that other facts may or may not exist; that it is, therefore, improper for the court to charge that such evidence affords a presumption against the delinquent pai ty’s case as a whole, and that the jury should weigh all of the evidence offered by the delinquent party in the light of that presumption.
    
      Semble (per McLaughlin ahd Laughlin, JJ.), that where it does not appear that the delinquent party attempted to bribe more than one witness, it is improper for the court to allow the jury to infer that the delinquent party had attempted to bribe more than" one witness by charging as to the effect of his having offered a bribe “to the witness, Mrs. Brown, or to any other person.” Ingraham, J., dissented.
    Appeal by t-lie defendant, The Manhattan 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 21st day of April, 1904, upon the verdict of a jury for $5,00Q, and also from an order entered in said clerk’s office on the 14th day of April, 1904, denying the defendant’s motion for a new trial made Upon the minutes.
    
      Austen G. Fox, for the appellant.
    
      J. Noble Hayes, for the respondent.
   McLaughlin, J.:

In December, 1897, the plaintiff attempted to board one of the defendant’s trains, and in doing so one foot was caught between the moving train.and platform and her leg and ankle seriously injured. She brought this action to recover the damages sustained, upon the ground that such injuries were caused by the defendant’s negligence in starting the train before she had succeeded in getting onto it. She had a recovery and defendant has appealed. She also had a recovery on a former trial, which, on appeal to this court, was reversed for errors committed in the admission of evidence and in the instructions given to the jury. (Brown v. Manhattan Railway Co., 82 App. Div. 222.)

The judgment here appealed from must be reversed for the following reasons :

First. The injuries set out in the complaint are that the plaintiff had “sustained a severe lacerated wound of the thigh which extended to the periosteum, dividing the nerves and blood vessels of the same, so that she suffers loss of sensation and impeded circulation in the part, and is unable to use leg as before the said injury, and that her nervous system -received a severe shock by the said accident from which she has not recovered "x" * * and that she

is seriously and, as she is informed and believes, permanently injured in consequence of the aforesaid.” During the course of the trial evidence was admitted against defendant’s objection and retained in opposition to its motion to strike out, to the effect that she suffered from gastritis. I think this was error. There is no allegation in the complaint, nor are any facts stated from which it can fairly be inferred, that the plaintiff, by reason of the accident, had been thus afflicted and would claim damages by reason thereof. If it be conceded that gastritis is a natural result of such injuries it is not a necessary result, and for that reason if a recovery were sought on that ground the same should have been pleaded. (Kleiner v. Third Ave. R. R. Co., 162 N. Y. 193; Hergert v. Union Ry, Co., 25 App. Div. 218; Page v. President, etc., D. & ll. C. Co., 76 id. 160; Sealey v. Metropolitan Street.R. Co., 78 id. 530.)

Second. The court erred in charging plaintiff’s seventh request, as follows : “ That it is presumptive negligence for the conductor of an elevated train in the City of New York to give the signal to start a train without using ordinary observation and care to discover if any person upon the platform of a station and within the range of his vision is approaching to board the train upon the platform on which he stands. And if the jury find that the conductor who stood upon the platform of the train which the plaintiff attempted to board on the night of December 1st, 1897, failed to make such observation before signalling to start the train, and the plaintiff used ordinary care in attempting to board the train, and seeing the gate open, if such was the fact (she having the right to assume that such care would be observed by the defendant’s employees) the defendant is chargeable with such negligence if the plaintiff was injured in consequence thereof.” The instruction is sought to be justified by the section of the Railroad Law relating to the subject of starting elevated trains, which provides, among other things, that no train on an elevated railroad shall be permitted to start until every passenger upon the platform or station, at which such train is stopped, desiring to board or enter such cars, shall have actually boarded or entered the same. (Laws of 1890, chap. 565, § 138.) But the charge, it will be observed, is much broader than the statute. It cannot be said, as a matter of law, that it is “ presumptive negligence ” for the conductor to start a train without using ordinary care to discover if any person upon the platform “ within the range of his vision ” is approaching to board the train. Indeed, if that rule were to prevail it is not difficult to imagine, in the city of ' New York, at certain hours of the day when elevated trains are severely taxed in order to transport passengers, it would be with the utmost difficulty, if not impossible, for the defendant to move its trains at all. Under this rule if the conductor saw a person approaching the ticket office or dropping a ticket in the box he would be obliged to hold the train because such person would then be upon the platform “within the range of his vision,” and approaching the train. It is difficult to formulate a rule which would apply to every case, but the statute should receive such construction as will enable the defendant to operate its trains, and at the same time insure the safety of passengers. Here, the jury should have been instructed as to the law bearing upon the subject of starting the train, and then told if they found such law had been violated they might consider that fact in connection with the other evidence bearing upon the defendant’s negligence—not that that fact alone created a presumption of defendant’s negligence. The court could not say, as a matter of law, that the defendant was presumed to be negligent if it violated the statute in starting the train. (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309; Goodkind v. Metropolitan St. R. Co., 93 App. Div. 153; Connor V. Metropolitan St. R. Co., 77 id. 384.)

Third. The court also erred in charging plaintiff’s ninth request as follows: “ Evidence tending to show that a party to an action tried to bribe a witness to give false testimony in his favor, if credited by the jury, is competent evidence as an admission by acts and conduct that his case is weak and his evidence dishonest, and if the jury find in this case that the defendant, through its agents, offered money or promised any valuable consideration to the witness Mrs. Brown or to any other person to testify against the plaintiff in this case falsely or to improperly influence their testimony, it affords a presumption against the defendant’s case as a whole, and the jury-should weigh all the evidence offered by the defendant the Manhattan Railway Company in the light of that presumption.” This instruction, as it seems to me, was erroneous for two reasons. In the first place no testimony was offered, so far as I have been able to discover, to the effect that an attempt was made to bribe any person except the witness Brown. If I am right about this, then the court could not leave it to the jury to infer that an attempt had been made to bribe some ‘£ other person.” (Storey v. Brennan, 15 N. Y. 524; Algur v. Gardner, 54 id. 360; Palmer v. Kelly, 56 id. 637.) Nor was it proper for the court to instruct the jury that if they found that an attempt had been made to bribe a witness that that fact, in and of itself, created a presumption against defendant’s case as a whole, and that all of defendant’s evidence must be considered in the light of that presumption. It is claimed that Nowack v. Metropolitan St. R. Co. (166 N. Y. 433) authorizes such instruction to be given. I do not think the authority goes so far as that. As I understand it that case simply holds that evidence tending to show that a party to an action tried to bribe a witness to give false testimony in his favor is competent as an admission that his case is weak and his evidence dishonest; that such evidence is not conclusive, but is for the consideration of the jury under proper instructions. Such fact does not create a presumption one way or the other, but simply permits the jury to infer from it that other facts may or may not exist. There is a radical distinction between an inference which a jury may draw and an instruction as to a presumption of law which they must recognize and be bound by. (Sugarman v. Brengel, 68 App. Div. 377; Carpenter v. Pennsylvania R. R. Co., 13 id. 328.)

Other errors are alleged, but the conclusion at which I have arrived renders it unnecessary to pass upon them.

The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.

Laughlin, J., concurred; Patterson, J., concurred on first and second grounds; Ingraham, J., dissented.

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