
    Catharine Tuomey, Resp't, v. The O'Reilly, Skelly & Fogarty Co., Impl'd, App'lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 3, 1893.)
    
    1. Negligence—Pleading—Election.
    The complaint charged the owner of a building with havi g constructed a cellarway with wooden doors encroaching on the street; the tenant with maintaining the nuisance, and this defendant with negligently permitting the cellar entrance to remain open and uncovered while delivering barrels to the tenant, whereby plaintiff was injured. Held, that a motion to dismiss as to this defendant was properly denied, as the complaint stated a cause of action for negligence against it; that its remedy was by motion to compel plaintiff to elect between the causes of action alleged, and if she elected to proceed upon that for a nuisance, a motion for dismissal would be proper.
    3. Same—Evidence.
    The complaint was dismissed as against the owner. Previous thereto certain ordinances were admitted in evidence and a survey of the cellar-way. Held, that the evidence was competent when received, and if irrelevant after the dismissal as against the owner, defendant should have moved to strike it out.
    8. Same.
    Evidence to show that there were similar cellar doors in the vicinity was excluded. Held, that if relevant when the exception was taken because the action had proceeded as for a nuisance, it became immaterial when the action continued as one for negligence.
    
      4. Same—Damages—Evidence.
    Under a general allegation of damage, a plaintiff is entitled to include in her recovery compensation for pain and suffering endured up to the time of the trial and to be thereafter endured, and hence evidence as to whether her hurt has been entirely cured is admissible.
    
      5. Same—Proof of ownership.
    An admission, by not denying, that defendant was engaged in the brewing business and owned trucks and employed drivers in its business, coupled with proof that the truck from which the barrels were being delivered bore defendant’s name, and a refusal of defendant to disprove its ownership and the employment of the men so deliveiing, is sufficient to sustain a finding that the truck was its property and the men its employes.
    6. Evidence—Motion to strike out.
    A motion to strike out evidence as irresponsive is properly denied, where the motion includes evidence which is proper.
    Appeal from a judgment for plaintiff which was entered upon a verdict, and from an order denying defendant’s motion for a new trial on the minutes.
    Action to recover damages for an injury sustained from the negligence of defendant’s servants in the use of a cellar entrance adjacent to the street, aud the street in front thereof, while engaged in the delivery of merchandise to the occupant of a building from one of defendant’s tracks.
    
      Geo. H. Yeaman and Horace C. Skelly, for resp’t; Edward H. S. Johnston, for app’lt.
   Bischoff, J.

The complaint charged defendant, Moore, with being the owner of the premises No. 72 New Chambers street, in the city of New York, and with having constructed in front thereof, in close proximity to the sidewalk or street and partly encroaching thereon, a cellar entrance provided with wooden doors which, when the entrance was in use, were folded back so as to leave the entrance exposed; and that lie so let the premises to the defendant, Tallón. The latter was charged with the maintenance of the nuisance as lessee of the premises. Defendant, the O'Reilly, Skelly & Fogarty Co., was charged with having negligently permitted the cellar entrance to remain open and uncovered without guarding against the risk of injury to passers by, and the sidewalk in front thereof obstructed, while its servants and employes were engaged in the delivery of a number of barrels of ale to Tallón, between seven and eight o’clock in the evening of April 2, 1891. The complaint farther states that by reason of the several acts of the defendants, plaintiff, while proceeding along New Chambers street, without fault or negligence on her part, fell into the open cellar, and in that manner sustained the injury for which she sought to recover in this action.

It seems indisputable that with respect to defendants, Moore and Tallón, the complaint was framed as upon a cause of action for damages resulting from the creation and maintenance of a nuisance, Forde v. Nichols, 36 St. Rep., 729, and cases there cited, with which the defendant, the O’R., S. & F. Co. was wholly disconnected, but so far as concerns the last mentioned defendant, who is the only appellant, the facts alleged are sufficient to.constitute a cause of action for damages resulting from an injury sustained by plaintiff through the negligence of defendant’s servants.

At the opening of the trial, counsel for defendant, the O’R., S. & F. Co., moved to dismiss the complaint for insufficiency, but for the reasons already stated, the motion was properly denied. The proper course for the defendant, the O’R, S. & F. Co., would have been to compel plaintiff to elect between the two causes of action, and then, if she had elected to proceed upon that for damages resulting from the creation and maintenance of a nuisance, the motion for dismissal of the complaint, as against the OR-., S. & F. Go., would have been proper, and should have been granted.

Respecting defendants Tallón and the O’R S. & F. Co., the use of the street in front of the premises for the delivery of merchandise was, for the time being, lawful, so neither per se nor prima fade a nuisance, Callanan v. Gilman, 107 N. Y., 360; 12 St. Rep., 21; and observing the allegations of negligence in the use of the cellar entrance and street for the purposes mentioned, the learned trial judge properly treated the action as against the defendant, the O’R, S. & F. Co., to be one for negligence. This also disposes of the contention that on the trial plaintiff was permitted, against the objection of the defendant, the OR., S. & F. Co., to substitute and litigate a different cause of action for the one alleged in the complaint.

When plaintiff rested, the court dismissed the complaint as against defendant Moore. Previous to this, plaintiff was permitted, under objection by counsel for the defendant, the O’R, S. & F. Co., to introduce in evidence certain city ordinances which, in effect, prohibit the construction and maintenance of cellar doors, extending into the street beyond a specified distance. Underlike objection, a survey showing the cellar entrance and the testimony of the surveyor were admitted in evidence. The complaint, however, charged, and the answer of the appellant denied, that the cellar entrance in front of the premises was constructed and maintained in violation of the ordinances. Hence, at the time of its admission, the evidence was competent and relevant to the issues under the pleadings, and at any rate admissible as against defendants, Moore and Tallón. Laws 1878, chap. 219, p. 273, as amended by Laws 1879, chap. 211, § 1, p. 290; McGrath v. N. Y. C. & H. R. R. R. Co., 63 N. Y., 530.

If, upon the dismissal of the complaint as against defendant Moore and the prosecution of the action against the remaining defendants as one for negligence, the evidence admitted was irrelevant, the defendants should have moved to have it struck out or requested the court to instruct the jury to disregard it. Again, before the dismissal of the complaint as against the defendant Moore counsel for appellant defendant, on cross-examination of Lynch, the surveyor, sought to show that like cellar entrances to the one in question had existed in this city for many years and then existed in the vicinity of the promises described in the complaint, but this evidence was excluded. Assuming it to have been relevant at the time of taking exception to its exclusion because the action had proceeded as one for a nuisance, it ceased to be so when the action continued as one for negligence. That there were other cellar entrances elsewhere in the city or vicinity of the premises could not in any sense help the appellant-defendant to relieve it from the exercise of due care in the use of the particular cellar entrance in question or the street in front thereof. The exclusion of the evidence was, therefore, not error.

Appellant next contends that the trial judge improperly refused to strike out certain irresponsive testimony on plaintiff's direct examination. This testimony was to the effect that plaintiff’s husband was blind. On a proper motion it ought certainly to have been stricken out, as by the pleadings plaintiff was confined to the recovery of compensatory damages for the injury sustained by her, and that her husband was blind, or crippled, could in no wise tend to establish either that appellant-defendant was negligent, plaintiff free from contributory negligence, or the extent of the injury or damages to which she was entitled. Pennsylvania Co. v. Roy, 102 U. S., L. ed., 141; 12 Otto, 451; Platner v. Platner, 78 N. Y., 90, 102; Farmers’ Bank, etc., v. Cowan, 2 Abb. Ct. App. Dec., 88, 90. But the motion to strike out included evidence tending to show that plaintiff’s fall was caused by a rope stretched across the sidewalk, a fact which was competent and relevant to the questions of defendant’s negligence and plaintiff’s freedom from contributory negligence. Hence, the motion was properly denied, McCabe v. Brayton, 38 N. Y., 196; People v. Beach, 87 id., 508, 512. It was not thereafter renewed nor was the court asked to instruct the jury to disregard the objectionable testimony. Baylies Trial Practice, 205, etc.

Plaintiff was asked on her 'direct examination “ Has your hurt ever been entirely cured ? ” This was answered under objection and exception, the objection being that the inquiry was “improper ” and the subject-matter thereof not pleaded.

The question was plainly intended to elicit the fact of the continued effect of the injury upon the witness and, construing the action, as we do, to be one for negligence against the appellant-defendant, plaintiff was1 entitled, under, a general allegation of damage, to have included in her recovery compensation for the pain and suffering endured up to the time of trial, and to be thereafter endured. Schuler v. Third Ave. R. R. Co., 48 St. Rep., 663.

An exception was taken to the alleged charge of the learned trial judge “ that the jury may take into consideration what the physicians consider as reasonably certain would be the permanent injury to the plaintiff,” but what he did charge was that the jury “may take into consideration what the physicians have said as to the permanency of the injury,” thus merely referring the jury to the testimony and not assuming the injury to be of a permanent nature. But the evidence was sufficient to justify the jury’s inference that the injury was permanent. Dr. Shannon testified: “At her age, unless it was treated gradually (meaning plaintiff’s arm), with manipulation and moving about, she won’t recover the use of it. The prospect is, Ithink, it wilj. remain permanently injured; ” and we understand this to mean that while there was a possibility of a cure by gradual manipulation and moving about of the arm, it was not within the bounds of probability because of plaintiff’s advanced age, and her injury was, therefore, reasonably certain to remain permanent

The complaint alleged that the appellant-defendant was at the time of plaintiff’s injury engaged in the brewing business in the city of New York, and owned trucks and horses, and employed drivers and assistants in and about its business. This was not denied by answer, and must, therefore, be taken as admitted, Code Civ. Proc., § 522 ; and the admission with the evidence that the truck from which the ale was being delivered at the time of plaintiff’s injury bore the name of O’Reilly, Skelly & Fogarty,” coupled with appellant-defendant’s refusal to disprove its ownership thereof and the employment of the men assisting in the delivery of the ale, on the trial, was sufficient to sustain a finding that the truck was the property of the appellant-defendant, and the men its servants and employes. Seaman v. Koehler, 122 N. Y., 646; 33 St. Rep., 729; Wylde v. R. R. Co., 53 N. Y., 156.

The remaining exceptions are without gravity, viewing the action as one for negligence and not for the creation and maintenance of a nuisance.

The judgment and order should be affirmed, with costs.

Bookstaver, J., concurs.

Pryor, J.—In form the complaint is undoubtedly faulty; since it alleges two several and distinct wrongs, for each of which only some of the defendants were responsible. As the causes of action so combined do not affect all the parties, they were improperly united; But the appellant’s remedy was by demurrer, and by failure to demur it waived the vice in the pleading.

True, the appellant was not answerable for the” creation or maintenance of the alleged nuisance. in the highway; but the verdict does not proceed upon appellant’s liability for the nuisance. The complaint explicitly imputes to the appellant that it obstructed the sidewalk in so careless, negligent and unlawful a manner that thereby the plaintiff was precipitated into the excavation. The evidence tended to establish the allegation of negligence against the appellant; the court submitted the issue of negligence to the jury; and the verdict finds the fact of negligence upon sufficient proof.

The appellant, however, insists that it owed no such duty to the plaintiff as would support an imputation of negligence. The contention is untenable. Whoever uses the highway, and for whatever purpose, is under obligation so to conduct as not unreasonably and carelessly to expose to peril another lawfully engaged on the highway. Indeed, in every situation and relation of life the law exacts proper care to avoid injury to another. Sic utere two ut alienum non laedas is a principle of universal prevalence.

Other exceptions are obviated by the argument in the prevailing opinion.  