
    Katie V. Hoey, as Administratrix, Etc., of James J. Hoey, Deceased, Plaintiff, v. The Metropolitan Street Railway Co., Defendant.
    (Supreme Court, New York Trial Term,
    October, 1901.)
    Negligence — Inconsistent findings as to cause of death — Jury cannot speculate as to how long an injured person would have lived hut for an intervening final cause of death.
    Where a jury find that a man, injured ten months before by an accident caused by the defendant’s alleged negligence, died of hasty consumption which the evidence shows had existed for only two months, they are not justified in finding that he would not have died when he did unless he had been Injured.
    In view of the finding of the jury that the man died of hasty consumption and of the established fact that tuberculosis is caused by inhaling germs into the lungs, the court, in the absence of expert evidence that any blow connected with the injury could have produced tubercles, rejected as too speculative, to support a finding for the plaintiff administratrix, a theory of her experts that the death of her intestate was caused by progressive muscular atrophy, shattering ■ the system and exposing it to sudden disease, and that but for this atrophy the intestate would not have died when he did.
    Motion for a dismissal of the complaint and for a verdict.
    Jacob Marks (Lyman E. Warren, of counsel), for plaintiff.
    Henry A. Robinson (Francis L. Wellman, of counsel), for defendant.
   Russell, J.

The plaintiff recovered a verdict of $12,500 upon the claim that her husband, James J. Hoev, came to his death from the negligence of the defendant. Before the cause was submitted to the jury, counsel for the defendant moved for a dismissal of the complaint and for a verdict, the decision upon which motion was reserved until after the finding of the jury upon specific questions of fact, with their general verdict.

The injury which the deceased received occurred on the 11th day of December, 1899, the death on the 80th of September, 1900. The jury find specifically: First. That James J. Hoey died September 30, 1900, from hasty consumption. Second. That he would not have died September 30, 1900, but for the injury of December 11, 1899. Third. That the disease of consumption would not have come to him but for the injury, and Fourth. That he died because of the negligence of the defendant.

There was ample evidence upon which the jury could find that quick consumption, originating a few weeks before the death, was the direct cause which produced that death. A verdict to the contrary would not have been justified by the evidence. The deceased undoubtedly sustained severe injury from the collision of December 11, 1899, and, had he gradually failed, with no new disease intervening to cause his death, the jury would have been, justified in finding from the evidence that it was caused by the injury received in a collision for which the defendant was to blame. During a. period, however, of some eight months after the injury Hoey apparently progressed somewhat on the road to recovery, exhibiting in the spring of 1900 some consciousness of greater strength by attempting to resume his former employment and working for a few days at manual labor. He was not strong enough to do so, however, and remained quiet until August, when he was stricken with incipient tuberculosis from which he died on the thirtieth of September. Upon .the facts, therefore, the jury was not at liberty to fud that Hoey would have died before the bringing of this action from the effects of the injury, having also found that his death came when it did from hasty consumption.

But the aid, furnished by the opinions of eminent physicians, was afforded to the jury and the court to link the accident to the death by their judgment upon the assumed facts that a disease called progressive muscular atrophy ” caused the death by shattering the system, and thus exposing it to sudden disease. There is no evidence that any blow in the injury caused tubercles to form; but it is claimed that they might be generated months after the injury by some unsolved connection with weakening physical powers. All of the physicians, however, substantially agree that tuberculosis is- produced in the lungs by the inhalation of the germs from the atmosphere, and that this principle has become a truism as a fact and not ás a mere opinion. H we must accept those teachings of pathology which have become demonstrations, in passing upon human rights, we must regard as a conclusive fact that James J. Hoey died from consumption immediately produced from the inhalation of bacilli and not so produced by a blow over nine months before his death.

It becomes, therefore, a matter of mere speculation as to whether Hoey would have lived or died before the action was brought but for the intervention of a new controlling cause. All human frames are subject to some physical weakness which may at sometime render the body pervious to a disease resulting in death. The system of Hoey was undoubtedly shattered by the negligence of the defendant, and, if there was sufficient in this ease from which a jury might infer that death came from microbrian germs generated by traumatism, a verdict for the plaintiff might be sustained. But the jury has found that tuberculosis directly caused the death, and this finding expressly negatives the assertion that such death was caused by the injury, except that there is a bare possibility that the frame, weakened by the injury, succumbed more readily to the new disease than it otherwise would but for that injury. Such a possibility is insufficient upon which to rest a verdict Weber v. Third Ave. R. R. Co., 12 App. Div. 512.

I am duly mindful of the value of the opinions of- the expert witnesses for the plaintiff, but such opinions are valuable only'as resting upon the facts assumed, and are insufficient of themselves to justify a verdict. Dobie v. Armstrong, 27 App. Div. 520, 526, per Follett, J., affd., 160 N. Y. 584.

And, if the testimony of the experts for the plaintiff is closely analyzed, it becomes quite clear that their divergence from the theory of the experts for the defense, that tuberculosis in the lungs w£s caused by inhalation of the bacilli, is more apparent than real.

The more general findings, therefore, of the jury by their general verdict, and the answers to the questions other than the first, are controlled by the finding as to the direct cause of death, leaving those other findings to drop as unsustained by the evidence under the more significant answer-as to what did cause the death.

' In view of the propriety of the practice pointed out by section 1187, Code of Civil Procedure, judgment is directed dismissing the complaint and setting aside the general verdict and the answers to the specific questions, except the first.

Judgment accordingly.  