
    Allan v. State S. S. Co.
    
      (Supreme Court, General Term, Second Department.
    
    February 12, 1890.)
    1. Negligence—Evidence—Sufficiency.
    A passenger on defendant’s steam-ship applied through the stewardess for quinine, which was distributed gratis as part of the contract of passage. Calomel was given instead, with serious results. At the trial of an action to recover for the injuries there was evidence that the medicines were in charge of the ship’s doctor, and kept in a very dark place which was in utter confusion within a day of the commencement of the voyage; that the letters in the labels on the bottles were entirely insufficient to guard against mistakes in the dark; and that the wrong medicine had been previously given another passenger. It was not certain that the calomel bottle was labeled “Poison ” on the night in question. Held, that the testimony was sufficient to support a verdict for plaintiff.
    
      2. Appeal—Review—Errors Cured.
    Plaintiff was permitted to show, against defendant’s objection, that some days after the giving of the medicine the doctor was seen intoxicated. Afterwards the court charged there could be no recovery for neglect of the doctor from any cause. JBeld,, that the case would be considered on appeal as if the evidence of intoxication had been rejected.
    Appeal from circuit court, Kings county.
    An action by Alice M. Allan against the State Steam-Ship Company to recover for personal injuries. There was a verdict for plaintiff for $12,500. From the judgment rendered thereon defendant appeals.
    Argued before Barnard, P. J., and Dykman, J.
    
      Seward, Da Costa & Guthrie, for appellant. Mirabeau L. Towns, for respondent.
   Barnard, P. J.

The plaintiff, a healthy young woman, took passage upon defendant’s steamer from Glasgow, Scotland, to New York. The voyage commenced on the 26th-of August, 1887. The next morning the ship stopped at Lome, Ireland, when the plaintiff and her mother went ashore. The ship left Lome on the 27th of August, 1887, and soon after the ship started, the plaintiff, feeling symptoms of a cold, applied through the stewardess for some quinine from the medicine supply kept by the defendant, and given gratis to passengers as a part of the contract of passage. The medicines were under the charge of a doctor employed by the defendant. The medicine given was not quinine, but one which occasioned extreme results both in suffering to the plaintiff and in permanent injuries of a most serious character. There was neglect in some one, by which these results were produced. ' The plaintiff gives evidence tending to show that the ship’s doctor was some days subsequently to the giving of the medicine seen intoxicated. This evidence was objected to and received, but upon her proof of the whole case the judge charged the jury that the plaintiff could not recover for neglect of the doctor from any cause. If the error in receiving the evidence of the intoxication of the doctor could not be cured, the trial of cases will be made very difficult. Evidence is received on a ground of action which fails, and the case is permitted to proceed on a theory which prevails under the proof. The case should be considered on appeal as if the evidence of intoxication of the physician had been rejected.

The case, then, is one of neglect against the company. Whether the defendant was bound by English or American statute to provide the medicine, or provide them at its own instance, the rule would be the same. Their arrangement must be such that a physician of ordinary skill can select them when asked for. The case against the defendant is made out by the testimony of one Chester. He applied for medicine in the same way it was furnished the plaintiff. The room was “very dark.” Bottles of all sizes stood around, in all shapes and in all positions. Some bottles were in racks, and some were resting on the racks. The place was in utter confusion. The bottles looked as if out of place. The doctor seemed confused, and hesitated in giving the .medicine asked for, and at last gave the wrong medicine to Chester, which burned his lips severely, instead of an innocent one which he asked for. The bottles, in some instances,- were in the racks which did not fit the bottles. Whether the bottles were opaque or transparent is disputed. The sample bottles were not returned, but were before the jury. If these facts are true, the company failed to furnish either a proper place for the medicine or a proper arrangement which would enable the physician to give the right medicines without confusion to himself or danger to the sick. This condition was within a day of the beginning of the voyage, and indicates a faulty beginning, and not a disarrangement afterwards by the doctor. The case was tried upon the theory that the mistake was in the giving of calomel instead of quinine, and samples of these bottles were before the jury, and are returned in the case so far as respects the labels. The calomel bottle is the smaller bottle, and has the word “Poison” on it, but so low as to conceal the word when it was in the rack. The letters in the label are entirely insufficient to guard against mistakes in a dark room at night. It is not certain that the calomel bottle was labeled “Poison” on the night in question. Assuming negligence, there is no question made as to an excessiveness of the verdict. The verdict of the jury has sufficient evidence to support it, and therefore the judgment should be affirmed, with costs.  