
    Agnes Mellwitz, Resp’t, v. The Manhattan Railway Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    
      1. Railroad—Injuries to passengers.
    Plaintiff's uncorroborated testimony was to the effect that the guaid of defendant’s train threw her out of the car and struck and caused her to fall on the platform. Disinterested persons who were present contradicted this and testified that she ran towards the train and fell in attempting to get on after the gates were closed and it was moving. Held, that the case should have been taken from the jury, or the verdict in plaintiff’s favor set aside and a new trial granted.
    3. Negligence—Married women—Damages.
    A married woman cannot recover for loss of earnings in an action for personal injuries unless such damages are specially pleaded.
    3. Same—Evidence.
    Where the issue involved is whether plaintiff was injured by a blow or by a fall it is error to allow a witness to testify that he heard the doctor when examining the plaintiff say that the injury was from a blow, where" the doctor’s attention was not called to it when upon the stand.
    Appeal from a judgment in favor of the plaintiff rendered upon the verdict of a jury at circuit, and also from an order denying the defendant’s motion for a new trial.
    
      I. W. Jacobson, for resp’t; Julien T. Davies and Joseph H. .Adams, for app’lt'
   Barrett, J.

I am inclined to think that the motion for a new trial in this case should have been granted. Certainly we would not have interfered with the judgment of the learned justice who tried the action at circuit had he granted a new trial upon his minutes.

The action is for damages alleged to have been sustained by the plaintiff, upon the morning of the 7th of June, 1889, at the Elevated Railway station at Eightieth street and Second avenue in this city. The plaintiff tells an improbable story as to what then occurred.

In substance, it is this: That she purchased two tickets, put-one of them in the box and held the other in her hand. When-about to enter the car, the conductor or gateman told her to put-her ticket in the box. He then punched or pushed her twice, once on the breast, and thus caused her to fall over on her left side on the station platform. She adds that she had actually got inside the car when this man pushed hér off and ‘-‘threw her out.” This story is entirely without corroboration and it is explicitly denied by six witnesses, three of whom have no connection with the defendant and are apparently disinterested. These witnesses-testify, in substance, that the plaintiff ran towards the train and fell in attempting to get on it after the gates were closed and while it was moving away. Several of these witnesses deny that the conductor or gateman pushed her, while others say that they' were so situated as to be unable to see the conductor. But what-they did see was entirely inconsistent with the version of the-affair given by the plaintiff, and, if credited, conclusively established her contributory negligence. The testimony of these witnesses is criticised by the respondent as improbable, contradictory and unreliable. But, as we read it, their contradictions and variations are slight and with regard to minor matters of detail; just such discrepancies, in fact, as are usually found when several observers of an exciting occurrence attempt to narrate what happened. The very fact of such discrepancies in matters of detail favors the veracity of the narrators, while photographic agreement upon every particular would be suspicious. The plaintiff’s testimony is likewise criticized by the defendant, and with more reason. For she tells a story of brutality without motive and gives us no -idea why she was singled out from a host of passengers for mere wanton outrage.

As the testimony of the plaintiff was in itself improbable, as it was wholly without corroboration, and as it was contradicted' by numerous witnesses, several of whom were entirely disinterested, we think the learned judge should either have taken the-case from the jury or granted a new trial. The trifling amount, awarded to the plaintiff is significant as to what actuated the jury. If her story was true, she was clearly entitled to a much more-substantial verdict, and it really looks as though the jury realized that her case was weak, yet gave her a small sum rather than turn, her out of court entirely empty-handed. This was compassion, not justice, and in considering such a case the following words of' Justice Barculo in Haring v. N. Y. & Erie R. R. Co., 13 Barb., 15, are apt and suggestive:

“We cannot shut our eyes to the fact that in certain controversies between the weak and the strong, between an humble individual and a gigantic corporation, the sympathies of the human mind, and naturally, honestly and generously, run to the assistance and support of the feeble and apparently oppressed, and that compassion will sometimes exercise oer the deliberations of a-jury an influence which, however honorable to them as philanthropists, is wholly inconsistent with the principles of law and the ends of justice."

As a better case may possibly be presented by the plaintiff •upon a new trial, it is proper that we should notice two other points made by the appellant.

The court, against their objection and exception, admitted evidence as to the plaintiff’s loss of earnings. This was error, for the reason that such damages were not pleaded. Uransky v. Dry Dock, E. B. & B. R. R. Co., 118 N. Y., 301; 28 St. Rep., 711. Ordinarily such damages are- provable without being specially pleaded, for in the case of a man or a femme sole they are the natural and immediate consequences of the injury. Not so, however, in the case of a married woman. She may undoubtedly recover them, but only in case she has, prior to the injury, been engaged in the performance of some labor for her sole and separate use and benefit, or can otherwise show that she is entitled to the fruits of her own labor.

In her case, they are not the immediate and necessary result of the injury. They result from the additional and special circumstances that she has been accustomed to avail herself of her statutory right to work for herself, or that for some -other reason she is entitled to the fruits of her own labor. The case cited is directly in point, and must be followed. And the rule there laid down finds support in Filer v. N. Y. Central R. R. Co., 49 N. Y., 55 and 56, where such damages, when claimed by a married woman, were styled “consequential.”

It was also error to permit the question which was put to the witness Wurst: “ Q. Did you hear what the doctor said when he was examining the plaintiff?” This enabled the witness to answer as follows: “ He says that is from a blow."

This testimony was highly prejudicial to the defendants, as the issue was whether the plaintiff fell naturally while attempting to .get on a moving car, or as the result of a push from the conductor. The doctor had been examined before the question was put, but he was not asked whether he made such a declaration at the time and place specified by Wurst

Treated independently, the testimony was hearsay. If offered to contradict the doctor, it was, of course, collateral, and under well settled rules his attention should have been called to it.

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

Yan Brunt, P. L, and Daniels, J., concur.  