
    Robert Tutt, Respondent, v. The City of Rensselaer, Appellant.
    Third Department,
    May 6, 1908.
    Evidence:— negligence — permanent injuries.
    Where, in an action against a city to recover for personal injuries, there is evidence that the highway had been obstructed for several weeks by piles of sand, a judgment for plaintiff will be sustained.
    Although it is technically erroneous to allow a physician to testify that the ‘ ‘ in j ury is likely to cause him pain and trouble for some time, ” the error is harmless, since the fact stated is inevitable.
    Evidence that injuries to a horse “ could be” permanent, is erroneous, but the error will be disregarded where the same witness later swears without objection that the injuries were permanent.
    Kellogg, J., dissented.
    Appeal by the defendant, The City of Bensselaer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 25th day'of May, 1906, upon the verdict of a jury for $550, and also from an order entered in said clerk’s office on the 25th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Peter A. Delaney and Ernest L. Boothby, for the appellant.
    
      Charles Irving Oliver, for the respondent.
   Smith, P. J.:

Upon the night of September 13, 1904, while driving along the westerly side of Third street, a public highway in the city of Bensselaer, the plaintiff’s horse ran upon an obstruction in said street, plunged and fell, and the plaintiff and his companion were thrown from the carriage. This action is brought to recover damages for the in juries sustained both by the plaintiff and his horse.

It is contended by the defendant that the verdict for the plaintiff should be set aside as against the weight of evidence. It appears that a couple of loads of sand were placed upon this highway upon the afternoon of the twelfth. The accident occurred between eight and eleven o’clock upon the night of the thirteenth and there was no warning of the obstruction given. There is evidence, however, from which the jury was authorized to infer that there were piles of dirt and sand which had been there for several weeks, to which the sand delivered upon the afternoon of the twelfth was only an addition. We have examined the evidence and agree with the trial judge that there was sufficient evidence to sustain the finding of the jury upon this question. The defendant does not seriously claim that there is any proof of contributory negligence on the part of the plaintiff. We find no reason, therefore, to disturb the judgment entered, unless it be in some rulings of the trial judge upon the admission of evidence.

There are two rulings which are here questioned. The plaintiff had been sworn as to his injuries, and thereafter his physician was called and asked the following question: “ Q. A man of Mr. Tutt’s size and age at that time, a shock sustained by being, thrown from a carriage and the infliction of such bruises as he had at that time, will you state whether or not that injury is likely to cause him pain and trouble for some time after the accident ? ” This was objected to, and the objection was overruled and an exception was taken. The answer was, “ Yes, sir.” This ruling would seem to be technically erroneous under the case of Higgins v. United Traction Co. (96 App. Div. 69). (See, also, Kavanagh v. New York Transportation Co., 95 N. Y. Supp. 567.)

This error, however, was apparently harmless. That such an injury would cause “ pain and trouble for some time after the accident ” is inevitable, and it has harmed nothing to allow the physician to state that it would be likely to do so.

The second eiTor complained of is to the ruling of the court upon the admission of evidence given by the witness flecker. Tie was a veterinary surgeon and he had sworn to the injuries which the horse sustained and was asked this question, “ Is such an injury as that likely to be permanent ? ” This question was objected to, the objection was overruled and an exception taken. His answer was, “Yes, it could be permanent.” Defendant’s counsel moved to strike out the answer, which motion was denied and an exception taken. The ruling, I think, was erroneous, but shortly thereafter the same witness swore to a subsequent examination of this same horse and swore without objection that its injuries were permanent. In view of this evidence subsequently given, it is apparent that the evidence erroneously received could not have harmed the defendant, and should be disregarded upon this appeal.

Ho other objections are urged upon us which call for reversal, and I recommend that the judgment and order be affirmed, with costs.

All concurred, except Kellogg, J., dissenting.

Judgment and order affirmed, with costs.  