
    Louis Schoen, Adm’r of Sebastian Schoen, App’lt, v. The Dry Dock, East Broadway & Battery Railroad Company, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed May 5, 1890.)
    
    Negligence—Injuby causing death.
    In an action to recover damages for the death of plaintiff’s intestate, it was shown that he was run over by one of defendant's cars, and was taken to a hospital, where his arm was amputated, and that he lived for twenty days. No evidence was given that the injuries were sufficient to cause death or require amputation. The only witness relied on to prove that death was caused by the injuries sustained by the accident was the physician who made the post mortem examination, and who testified that the cause of death was exhaustion and acute pleurisy following the amputation, but he did not account, in any way, for the origin of the pleurisy. Held, that there was no sufficient proof that the death was the legitimate result of the negligence of defendant’s driver, and that the complaint was properly dismissed.
    Appeal from judgment of dismissal of complaint.
    
      George W. Wilson, for app’lt; John M. Scribner, for resp’t.
   Freedman, J.

This action was brought to recover damages for the benefit of the next of kin of the decedent by reason of the death of the decedent alleged to have been caused by the negligence of defendant’s driver. The decedent at the time of his death was four and one-half years of age. Such an action did not lie at common law. The right of action was first created by chapter 450 of the Laws of 1847, and the action may now be maintained under § 1902 of the Code of Civil Procedure by the executor or administrator of the decedent for a wrongful act, neglect or default by which the decedent’s death was caused.

The burden was therefore upon the plaintiff to establish, as part of his case and by competent evidence, that a wrongful act, neglect or default on the part of defendant’s driver was thé actual cause of death. The plaintiff, at the trial, did not sustain the burden in this respect. True, it is not necessary that the cause of death should be shown by the testimony of an expert. Where, for instance, a person, on being run over, is killed on the spot, the cause of death is apparent to every ordinary observer. But in the case at bar the boy was taken to a hospital and lived for twenty days thereafter. While there his arm was amputated. 2io witness described the' injuries sustained as sufficiently severe. His little brother testified that one wheel of the car passed over decedent’s hand, but no evidence was given that hie injury was sufficient to cause death or require amputation. The hospital doctors were not placed upon the stand. The surgeon who performed the amputation was not called -as a witness.

The only witness relied on by the plaintiff to prove that the death of the decedent resulted from the injuries which he sustained on the occasion of the occurrence complained of, was a physician attached to the coroner’s office who had never seen the decedent until after death. This witness admitted that he had no personal knowledge as to the character of the injuries which resulted in the amputation, that there were no-other signs of violence except the amputated arm, that the amputation of a person's arm is not usually fatal, and that after amputation it is impossible to tell what the conditions were that necessitated the operation, because the operation would necessarily remove all the indicative features of the case. As the result of a post mortem examination, which he had made and which had disclosed that the ’oft side of the pleura or membrane involving the lung was in a state of acute pleuritic inflammation, he undertook to say that in his opinion the cause of death was exhaustion and acute pleurisy following in the wake of the amputation, but he did not account in any way for the origin of the pleurisy. As the case "■-as left, the pleurisy might have come from a cold or exposure before the accident, or from the condition of the boy imrr.ed a'.ely preceding the accident, although he then appeared in hen. h or from, subsequent unnecessary exposure in the hospital, a his being in substance the state of the evidence, there was no sufficient competent proof that the death was the legitimate result of any wrongful act, neglect or default on the part of defendant’s driver, and plaintiff’s complaint was properly dismissed. That being so, it is not necessary to determine whether a sufficient case was made out in other respects.

The judgment should be affirmed, with costs.

O’G-orman, J., concurs.  