
    Elizabeth Devine, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    March 5, 1909.
    Evidence — negligence — injuries resulting in deprivation of natural powers — for what purpose admissible.
    In an action for personal injuries caused by negligence, evidence that plaintiff's capacity to conceive would continue, but that by reason of the injuries she would continually suffer the discomfort and pain of miscarriages, is competent on the question of damages.
    While such evidence cannot be made a basis for damages for pecuniary loss resulting from the deprivation of future offspring, it is admissible as a basis for damages for pain and suffering.
    Where such evidence was not used as the basis for the unlawful damages, its admission is not reversible error.
    Jenks and Miller, JJ., dissented, with opinion.
    Appeal by the defendant, the Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the comity of Kings on the 8th day of March, 1906, upon the verdict; of a jury for $2,000, and also from an order entered in said clerk’s office on the 29th day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      John F. Carew [Thomas T. Magner with him on the brief], for the respondent.
   (xaynor, J.:

The evidence, regardless of the question by which it came in, or of whether it cropped out, was competent on the question of damages, viz., that the plaintiff’s. capacity to conceive would continue, but she would continually suffer the discomfort and pain of miscarriages. A motion to strike it out would have been properly denied. To say, therefore, that “ The allowance of the question was error ” is only to deal with a technicality for its own sake. It is true that the evidence could not be used as a basis for damages for pecuniary loss resulting from deprivation of future offspring (Butler v. Manhattan Railway Co., 143 N. Y. 417), but it could be used as a basis for damages for pain and suffering, and was therefore material and relevant. If the defendant’s counsel feared that the jury . might also make use of it to speculate as to how much pecuniary loss the plaintiff would suffer by having no more children to grow up and support and enrich her (after the manner in actions by next of kin for deaths by negligence), it was for him to request the trial Judge to charge the jury that such damages were not allowable. As it is, the evidence was properly in the case, and there is nothing to indicate that it was used as a basis for such unlawful damage. It will not do to distort the charge of the trial Judge on that head (to which there was no exception), viz., that the plaintiff was “entitled to recover reasonable compensation for her pain and suffering, for the deprivation of her natural powers, for the loss of health which is due to this accident, if it is due to it ”. To say she was entitled to damage “ for the deprivation of her natural powers ”, was strictly correct, even if limited to a particular delicate meaning, which was not the case. That is true in the case of man or woman. But that is far from even intimating that damages may be given for pecuniary loss resulting from deprivation of future children. So where in the case is there any intimation of a notion, much less of a claim, that such damages were allowable. ISTor was there any claim on the argument, nor is there any in the brief for the appellant, that such damages were allowed. The only point made on the admission of the evidence in question is that it was “incompetent, immaterial, irrelevant,” for the reason that it was not shown to be due to the accident, and “as not pleaded ”. That it was used as a basis for unlawful damages is not claimed. The learned counsel for the defendant could not bring himself to go that far. Finally, it may be worth while to point out that the question itself was proper, viz., “What effect does it” (the injury) “have on her capacity to bear children ” ? It was just as proper to ask what effect an injury has on the function, use or capacity of the arm, leg or stomach. The capacity may be made laborious, .or painful, or destroyed. The degree of injury is competent to be shown. If the plaintiff were still able to conceive and bear children with regularity and certainty that would be evidence that her womb was not much injured or weakened, and that she could not do so would be evidence — strong corroborative evidence •—• that the physical condition testified to actually existed, viz., that the womb was retroverted and its ligaments greatly weakened.

The judgment should be affirmed.

Woodward and Rich, JJ., concurred; Jenks, J., read for reversal, with whom Miller, J., concurred.

Jenks, J. (dissenting):

I dissent. A physician called by the plaintiff, after testifying that the probable effect of such an accident was retroversion of the plaintiff’s womb, was asked : “ Q. What effect does it have on her capacity to bear children?” This was objected to, but under exception the witness was permitted to answer: “ She cannot bear children. She may conceive, but she will abort.” 1 think the allowance of this question was error. (Witrak v. Nassau Electric R. R. Co., 52 App. Div. 234, 236; Butler v. Manhattan R. Co., 143 N. Y. 417.)

As I read the prevailing opinion this error is held not reversible, because the testimony thus elicited could be used as a basis for damages for the pain and suffering. But in the first place there is no testimony in the case that conception and abortion would result in any greater pain and suffering than conception and delivery; and in the second place the testimony was not elicited as evidence of pain or suffering, nor did it crop out in answer to any inquiry upon that subject, but' it was given in direct response to a question which was limited to the plaintiff’s capacity to bear children. And even if it were proper to have elicited such testimony as relevant to pain and suffering, that does not cure the error which permitted a direct answer, strictly responsive to a question which was confined to an improper element of damages. The defendant was not bound to aslc the court to limit this testimony thus elicited to the question of pain and suffering, under penalty of losing the benefit of its exception.; but it was rather the duty of the plaintiff to thus limit such testimony. While it is true,- as written in the prevailing opinion, that the only point made on the printed brief as to the admission of this testimony is that it was “ incompetent, immaterial,, irrelevant,” examination of the record shows that the objection taken to the question was that it was “ incompetent, immaterial, irrelevant, as not pleaded, as speculative, and too indefinite.” Now in Witrak v. Nassau Electric R. R. Co. (supra, 236), Willard Bartlett, J., speaking for this court, said of such testimony : “ The injury is too remote and speculative.”

I think that the defendant did not lose the benefit of its exception because it did not request the court for instruction that such damages were not allowable. The charge dealt both with the case of the husband and of the wife. The court' specifically charged that the husband was not entitled to recover because of any incapacity of his wife to bear children; but when it came to charge the jury as to the damages recoverable by the wife, it made no mention of this element of damages at all, but, after discussion of the facts, it said that she was entitled to recover reasonable compensation for “ her pain and suffering, for the deprivation of her natural powers, for the loss of health which is due to this accident, if it is due to it.” Thus not only was the plaintiff j>ermitted to ask a question which directly and only introduced an improper element of damage into the case, but the instruction that this was an improper element of damage was confined to the case of the husband alone; no such limitation was made as to the case of the wife, and the court used an expression which was broad enough to include her incapacity to bear children.

Miller, J., concurred.

Judgment and order affirmed, with costs.  