
    Mary L. Gilbertson, Respondent, v. The Forty-second Street, Manhattanville & St. Nicholas Avenue Railroad Co., Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    
      ¡ In an action for personal injuries alleged to have resulted from a fall from a street car, the court in the charge stated to the jury that an expert witness for the plaintiff had testified to" his opinion that the injuries which he found upon examination were caused by the fall. In fact such witness had testified to the injuries, but gave no opinion as to the cause. Other expert witnesses had testified that the injuries were not caused by the fall. Held, that such erroneous statement was material and was ground for reversal.
    Appeal by defendant from a judgment of this court, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the judge’s minutes.
    
      Charles Strauss, for appellant.
    
      Samuel H. Randall, for respondent.
   Daly, Oh. J.

The plaintiff claimed to have sustained severe injuries, among them a fracture of the left hip, from a fall occasioned, as alleged, by the starting of the car from which she was alighting, after it had been first stopped at her request. Two ¡Physicians were called on her behalf to testify to the injuries from which they found her suffering. One of them, Dr. Good, found a shortening and eversion (turning outwards) of her leg, and came to the conclusion that she had an impacted fracture of the neck of the thigh bone; that is, that the neck of the bone had been driven into 'the. head. Two physicians were called by defendant who gave it as their-opinion- that the fracture was not- caused by the fall. In charging the jury the learned trial judge said : “ But it is-denied by the defendant that this fractp-re was the effect of 1 the fall. You have heard two medical men on the stand as-witnesses' who swore that in their opinion that fracture* which' •is the main hurt which she complains of, could not possibly have been caused by this fall. You have heard the opinion of the gentleman who attended her, Dr. Good, that it was.;, ..that that fall was the cause of that fracture. - In coming to your opinion upon that subject ask yourselves is there any evidence in the case of any other cause of that fracture? ■ If there be any evidence of any other cause of that fracture, then you will say which of these was the cause.”'

..At the close of the charge the. defendant’s counsel took several exceptions, among them the following: “T. except further to yotir statement, of the statement, .or its effect, of Dr. Good, to ttife fact that the injury to the thigh bone was,the ' result of the fall.” An examination of the testimony of Dr. Good does not disclose that he gave any opinion as to the cause of the fracture. He was examined and cross-examined at length and recalled to the stand for- further questions, and the jury -may have taken the statement, in the charge as the legal conclusion from his whole testimony. This undoubtedly-affected their verdict, and the error having been pointed out by. a timely' exception, the judgment will have to be reversed and a new trial.ordered.

This conclusion is reached without hesitation because there are. good grounds for holding that the.Vérdict of $10,000 recovered by the plaintiff is excessive. The plaintiff, a lady of sixty years, capable of earning three or four dollars a week and afflicted with injuries which -may be permanent, was undoubtedly entitled to substantial damages for the injury she' sustained, But the jury were evidently influenced by the suggestion of insurance by the- defendant against liability for the negligence of its employees, and the verdict '.represents," not their estimate of a just compensation to the plaintiff, but their prejudice against such forms of insurance. In view of the action of the courts with regard to excessive verdicts, we would, in any event, have been required, I think, to reduce this one.

Judgment reversed, new trial ordered, with costs to abide the event.

• Bookstavee and Bisohoff, JJ., concur.

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