
    Phoebe M. Raynor, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Negligence — evidence that the party's condition might have been caused hy the injury or that the injury was sufficient to cause it is insufficient.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the plaintiff was thrown from one of the defendant’s cars into the street, striking her head and sustaining a flesh wound; that over two months after the accident she gave birth to a child and was in labor longer than the normal period; that it was necessary to use forceps in delivering the child. The physician who attended her at the time of her confinement testified that the prolonged labor was due to the weakened condition of the muscles and nerves of the womb and abdominal wall. He enumerated a variety of causes which might result in the condition in which he found the plaintiff at the time of the birth of the child. He was then asked, “Can you say' with reasonable certainty, then, whether or not this wound in the head caused these particular injuries,” to which the witness replied, “Not with reasonable certainty, no sir.”
    
      Beld, that after the doctor had testified that he could not state with reasonable certainty whether or not the wound on the head caused the particular condition which he had referred to, it was not competent to ask him whether in his opinion this accident was sufficient to cause this weakened condition of the nerves and muscles of the abdominal walls and of the womb;
    That evidence that the plaintiff’s condition might have been caused by the injury or that the injury was sufficient to cause such a condition was not competent evidence to show that the injury did cause the condition.
    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 20th day of October, 1904, upon the verdict of á jury for $1,000, and also from an order entered in said clerk’s office on the 13th day of October, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      Don R. Almy, for the respondent.
   Ingraham, J.:

The plaintiff brought this action to recover for injuries caused to her by being thrown from one of the defendant’s cars on the corner of .Sixth avenue and Fifty-ninth street by the car starting as she was about to .alight. The accident occurred on the 3d day of January, 1900. The plaintiff at the time was employed in a store on Twenty-third street. She took one of the Sixth Avenue cars and when- in the neighborhood of Fifty-ninth street the conductor announced that the passengers were to change for the west side that as she was in the act of leaving the car she was thrown to the ground,' apparently.' striking her head and causing a flesh wound, and carried to the Roosevelt Hospital where her wound was dressed when she was taken to her. house in - Ninety-fourth street, near Amsterdam avenue; she remained in bed for two weeks suffering pain in her head and back; that subsequently on the fifth of March, over two months after the accident, she gave birth to a child; that she was in labor before her child was born about forty-one hours, and she claimed and was allowed to prove the pain and suffering experienced by her in giving birth to this child as a result, of the' accident, The physician who attended her at the time of her confinement testified to the condition in which he found the plaintiff at the time of her confinement; that after she had' been forty-one hours ih labor he found that she was- unequal to the delivery of the child without assistance, as she was then very much exhausted; that she did not have a normal degree of physical force for the expulsion of the child; that her heart was weak; and she was anaemic, and it was on account of this added inability that he was. obliged to use forceps to deliver the child ; that the internal condition of the womb was one of constitutional weakness, so that there' was a weakened condition of .the blood and weakened condition of the muscles and nerve force ; that the normal period of labor is sixteen hours for the first labor and twelve hours for the second ; that the length of labor was beyond the usual time and was due to the weakened condition of the muscles and nerves of the womb and abdominal wall. The physician was then asked a hypothetical question assuming the facts that then appeared as to the injury, and was asked whether he could tell as to what caused the condition that lie found the plaintiff in at the time of the birth of the child. To that he answered, “ I could tell a variety of causes.” He was then asked to enumerate all the causes for such a condition. This question was objected to by the defendant, the objection overruled and the defendant excepted, and the witness answered, “A woman who is carrying a child is under "a very great strain, if I may call it, to supply sufficient nourishment for that growing child within her, and will suffer more from any upset to the ordinary process of nutrition than one who is not pregnant.” He was asked to give ■the causes for the condition of the weakness in the muscles and nerves, to which he replied, “ Any shock, any injury which will —. That injures her in any way, that causes severe pain, unconsciousness, confining her in bed, or produces a wound, lack of good nourishment, unhealthy surroundings, excessive labor, I mean daily labor of any kind, any intercurrent disease ; * * * any organic affection, such as heart disease, lack of ability of the heart to carry on its work, a weak heart, fevers, all such conditions and diseases. I think those cover all that need be mentioned.” Counsel for the plaintiff then asked the witness another hypothetical question which assumed the various facts that had been testified to to the plaintiff’s condition and the birth of her child, and then continued, and basing your opinion upon these facts, can you say with reasonable certainty what was the cause of this weakened condition of the abdominal walls which you found, of the muscles and nerves of the abdominal walls which you found in this case ? ” which was objected to upon the ground that the question was incompetent and called for a conclusion which was too remote, particularly as the doctor had already testified that there were numerous causes for this condition which had not been eliminated in the question; and that it was not within the pleading. This objection, seems to have been overruled and, after some discussion, counsel for the plaintiff asked the witness : “ Assuming those facts to be true, can you say with reasonable certainty then, whether or not this wound in the head caused these particular injuries which I have referred to % ” To which the witness answered* “ Not with reasonable certainty, no, sir.” Counsel for the plaintiff then asked this question : “ Hive us your opinion whether or not that did cause or was sufficient to cause this weakened condition of the nerves and muscles of the abdominal wall and the womb % ” This question was objected to upon the same ground, and upon the further ground that as the doctor said that he could not state with reasonable certainty, it was quite apparent that the doctor could not give an opinion; that the question was too. speculative. This objection was'overruled and the defendant excepted, and the doctor replied, “It would cause it in some cases.” There Avas then a long colloquy between the court and counsel, in which both seem to have had a hand in framing a question to be asked the witness, and which resulted in another long hypothetical' question being asked the witness which assumed facts ¡iroved; and the witness Avas then asked : “ Can you say Avith reasonable certainty what Avas the cause of the weakened condition of the muscles and nerves of the abdominal Avails and of the womb? ” To this question the defendant made the same objection as to' the •previous question, Avhich was overruled, and the defendant excepted, Avhen the Avitness ansAvered, “ Injuries and shock through which she had gone and confinement in bed.” He Avas then, asked by the court: “What caused the shock?” To which he ansivered, “The cut on the head would do that,” and was then asked: “ Well, in your opinion, did it; how about that, doctor ? ” To which he replied, “ The reason I can’t answer is because there are other things to consider,” and after some other questions Avhen the doctor Avas requested to think it over, he replied, “No; it is tied up so much I can’t give an opinion on it.”

• I think that most of this evidence was entirely incompetent; that after the doctor had testified that he could not state with reasonable certainty whether or not the wound on the head caused the particular condition Avhich he had referred to, it was not competent to ask him whether in his opinion this accident was sufficient to cause this weakened condition of the nerves and muscles of the abdominal walls and of the womb. The physical condition of the plaintiff Ávhich caused this prolonged labor,, over twO' months after the accident, could have resulted from many causes, and the physician could not testify with reasonable certainty as to Avhich of the many was the real cause of the condition in Avhich he found the plaintiff. Under such a condition, to allow a physician to testify that an accident could have caused such an injury, and then to allow a jury to award damages for a condition which could have been caused by an injury, is to allow the jury to base a verdict, not upon evidence, but upon their speculation upon what might have been. The biu-den of proof is on the plaintiff to establish by competent evidence that a condition for which compensation is demanded ivas caused by the injury for which a defendant is responsible. That such a condition might have been caused by the injury, or that the injury was sufficient to cause such a condition, is not competent evidence to show that the injury did cause the condition: It is a class of evidence

that has always been condemned by the courts as speculative and uncertain, which would result in a verdict against a defendant based upon speculation or conjecture and not upon evidence. The nature of the plaintiff’s employment during the period of pregnancy was one of the causes specified by the doctor for this condition of abdominal weakness from which resulted this prolonged labor. There is nothing to show that during the period that the plaintiff was pregnant she was properly nourished, or that the other conditions under which she lived did not also tend to produce this condition of weakness that caused her prolonged labor; and it was qijite incompetent to allow- the jury to speculate upon this opinion of the physician that this accident was sufficient to have caused this condition of weakness and to award the plaintiff damages for the pain and suffering that was caused thereby.

When the case was submitted to the jury the court charged'them that if they found that the “ pains of childbirth were prolonged beyond what they would otherwise have been through a weakened condition of the muscles and nerves of the womb and abdominal walls, and that this cut on the head ivas the immediate and necessary cause of the weakened condition I have just referred to,” the jury could allow her compensation for the prolonged pains, thus allowing the jury upon this incompetent evidence to speculate upon the cause of the prolonged childbirth, but which was not proved by competent evidence. This disregard of established principles applicable to the trial of cases of this kind requires us to reverse this judgment.

It follows' that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Brién, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

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