
    Morris Ackman, Respondent, v. The Third Avenue Railroad Company, Appellant.
    
      Personal injury—proof of hystero epilepsy incompetent, where not pleaded and not the necessary result of the injury.
    
    Evidence that the plaintiff, in an action brought to recover damages for personal injuries, was suffering from hystero epilepsy, is not admissible under an allegation of the complaint that he received “a wound at the right upper angle of the forehead, also a fracture of the skull, concussion of the brain and a fracture of the nasal bone, all of which gave him severe bodily pain and shock to his physical and mental system,” where it appears that hystero epilepsy is not the necessary and immediate result of such injuries.
    Appeal by the defendant, The Third Avenue Railroad 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 22d day of November, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 22d day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Herbert R. Limburger, for the appellant.
    
      Abraham Nelson, for the respondent.
   Rumsey, J.:

The action was brought to recover damages for injuries sustained by the plaintiff because of the negligence of the defendant. The plaintiff- alleged that he had received “ a wound at the right upper angle of the forehead, also a fracture of the skull, concussion of the brain," and a fracture of the nasal bone, all of which gave him severe bodily pain and shock to his physical and mental system, and that by reason thereof plaintiff * * * will be prevented from attending to his usual business duties and will be permanently disabled.” A witness was produced by the plaintiff on the trial who, having testified that he had had the plaintiff in charge from the time of his injuries and had examined him at a certain time stated, was asked, '• What condition did you find him in then % ” to which he answered, In a condition of hystero epilepsy.” When that answer was given the defendant immediately moved to have it stricken out upon the ground that it was not descriptive of any condition warranted by any symptom testified to; * * *' it is not testimony as to any objective symptom which the plaintiff had, on the ground that it is describing a condition which is the province of the jury to determine.” The motion was denied and defendant excepted. The defendant’s counsel cross-examined the witness as to what caused a condition of hystero epilepsy, and as to " whether it was a.' necessary result .of such an injury as the. plaintiff had received, and from the cross-examination it was quité clear that hystero epilepsy did not necessarily and immediately result from the injury. Upon that fact appearing the defendant again made a motion to strike out the testimony upon the several grounds mentioned above and upon the further ground that epilepsy was not pleaded. The court denied the motion and the defendant excepted.

The defendant requested the court to charge that the plaintiff could not recover anything for the condition of hystero epilepsy, to which a refusal was given, and an exception taken to the refusal. The plaintiff had a verdict and a motion for a new trial was denied and this appeal was taken.

We think that the court erred in refusing te> strike out the evidence as to hystero epilepsy, and that the question was properly raised by the defendant at the trial. The question asked of the expert-witness who had examined the plaintiff was a proper question and no objection would have lain to it. But the answer stating that lie was suffering from hystero epilepsy presented a condition which might or might not have been competent according to whether, the pleadings were such as to warrant the reception of the evidence. If that condition resulted immediately and necessarily from the injury which the, plaintiff had received it was competent, although not. set up in the complaint as an item of special damage; but if it did not so result it was incompetent under the rule laid down in Kleiner v. Third Avenue R. R. Co. (162 N. Y. 193), and in the case of Geoghegan v. Third Avenue R. R. Co. (51 App. Div. 369). Whether that condition was a necessary and immediate result of the shock the plaintiff had received was a proper subject for cross-examination of the. witness upon the part of the defendant, and when after such examination it appeared that the disease did not immediately and necessarily result from the shock, it became apparent that the plaintiff was not entitled to prove the existence of that condition as a ground for special damages, unless he had pleaded it; and if the defendant moved to strike out the proof of this damage as soon as it was ascertained that it was such as should have been pleaded, the motion was in time and the question was properly presented to the court. Under the decisions above cited the evidence should not have been received, not having been. pleaded, and as it was received and as it was undoubtedly evidence of a serious condition upon which the jury might act, in fixing their verdict, it must be assumed that it worked injury to the defendant,, and for that error the judgment and order should be reversed and a. new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Ingraham and Hatch, JJ., concurred.

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