
    Ann Looram, as Adm’rx, etc., Resp’t, v. Third Avenue Railroad Company, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 28, 1889.)
    
    1. Negligence—Evidence—Medical testimony.
    Where- in an action for damages for negligently causing the death of plaintiff, the evidence showed that the immediate cause of death was peritonitis, medical witnesses called for plaintiff testified that peritonitis might he caused in seven different ways. The jury found for plaintiff. Held, that it is no objection; that there was no proof but that several causes, which could not be attributed to defendant’s negligence, existed in the case; the rule applicable is there being a sufficient cause shown, the presumption is that causes not made to appear did not exist.
    2. Same—Opinion op medical witness.
    A question to a physician who had attended deceased from the time of his injury to his death, and who had testified that the immediate cause of his death was peritonitis : “ By what was the peritonitis caused ?” was proper, and not objectionable as too general, and not tracing the cause of death with sufficient certainty.
    3. Tbial—Jttby—Instbuctions.
    The court, in its charge, remarked that a certain witness had testified to a certain thing, adding: “If I remember correctly.” The counsel did not correct the court, by turning its attention to the fact that another witness had testified to the matter, and not the witness named by the court, but. excepted to that part of the charge. The court had previously told the jury that they, and not the court, were to determine what testimony had been given. Held, that the exception was without substance.
    
      Appeal from a judgment entered upon the verdict of a jury at a trial term.
    
      William N. Cohen, for appl’t; W. Bourlce Cochran and Daniel P. Mahoney, for resp’t.
   Sedgwick, Ch. J.

The action was for damages suffered by the next of kin of plaintiff’s intestate from the death of intestate, caused by the alleged negligence of servants of defendant. The first objection for appellant is that there was no proof that the death was caused by the injury received through defendant’s negligence, as alleged. The immediate cause of death was peritonitis. The argument for appellant is that plaintiff’s medical witness testified that peritonitis may be caused in seven different ways, and there was no proof but that several of these causes, which could not have been attributed to defendant’s negligence, existed in the case. There was proof, however, that a certain cause, which the jury might competently find ensued from defendant’s negligence, actually existed. The rule to be applied, there being sufficient cause shown, is that causes which were not made to appear did not exist. There was no deficiency of proof on this subject. There was nq legal objection to the questions asked of the witness, Dr. McCreery. The court refused to allow a question asked of a medical witness, which was: “What can you say, with reasonable certainty, were the probabilities of Looram’s life or living with that condition that you found? ” While this question was properly excluded, as it only referred to the probability of Looram’s living at all, with his kidneys in the diseased state proven, the court subsequently allowed an examination on the subject intended, by proper questions asked by the defendant’s counsel, to as great an extent as. he wished. In his charge the court remarked that a certain witness had testified to a certain thing, adding: “If I remember correctly.” The counsel did not correct the court by turning its attention to the fact that another witness had testified to the matter, and not the witness named by the court, but excepted to that part of the charge. The court had previously told the jury that they, and not the court, were to determine what testimony had been given. The exception is without substance.

The charge of the court, as made, was without error, and sufficiently comprised all matters to which the defendant’s requests referred, which should have been charged. In my opinion, it is irregular to make an exception by inserting in the case that “ defendant excepts to foregoing italicized portion of the charge.” An exception must be taken- at the trial, and at that time the charge is not in print, and no part of it can be italicized. The exception can be entertained only by supposing that on the trial there was an exception to a part of the charge represented by the italics in the printed case, and then proceeding to consider the supposed exception.

The verdict cannot be disturbed as excessive in its assessment of damages.

Judgment and order affirmed, with costs.  