
    Pauline E. Farrell, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      ffioidence — statements by an actress that personal injuries obliged her to give up an engagement—they may be contradicted by proof that it was the result of. her incompetency.
    
    In an action brought to recover damages for personal injuries, in which the plaintiff, an actress, testifies that she was compelled, by ill-health resulting from her .injuries, to give up a theatrical tour which ¡she’entered upon some four months after the accident, and .that during, the engagement. she-mforpied her manager of her illness, the defendant should be allowed to ask' the manager whether he observed anything in the appearance of the plaintiff during the tour which indicated to him that she was not in good health, and whether she made any complaint-to -him during that time that she was suffering from illness - of any kind; the defendant should also be allowed to-show that the theatrical enterprise failed because of the plaintiff’s inferior dramatic ability and not ■ because of her ill-health. .
    Patterson, J., dissented.
    Appeal- by the defendant, the Metropolitan Street Railway Cornpany, 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 30tli day of October, 1899, upon the verdict of a jury for §1,000, and also from an order entered in said clerk’s office on the 17th day of November, 1899, denying the defendant’s motion for a new trial made upon the minutes. .
    
      Charles F. Brown, for the appellant.
    
      Ernest E. Baldwin, for the respondent.
   Ingraham, J.:

The plaintiff was injured while attempting to alight from one of the defendant’s'street railway cars, and brought this action to recover for such injuries. Upon- her direct examination she testified that she was an actress, and that at the time of the accident was rehearsing a part in a play in the American Theatre in the city of New York; that she was injured o.n the 27tli day of ■ April, 1897 ; that a few days after the injury she went to Boston, where she remained confined to her house for about two months, and then went to her father’s house at New Haven, Conn., where she remained until some time in August, when she joined at Stamford, Conn., a theatrical company under the management of a Mr. Sammis, with whom she had an engagement; that she remained with the company for five or six weeks, during all of which time she was ill, suffering pain in her head, back and nerves ; that she was in bed most of the time; that through the day, during this engagement, she was seldom able to go to rehearsal •; was under a physician’s care all of the time, and that about six or seven weeks after she commenced she had to give; up the;-str.uggle to work; that -before the accident - she .weighed 126 pounds, which was her normal weight; but that after the accident she weighed 98 pounds, and at the time of the trial 110 pounds. Hpo.n cross-examination, the witness testified ■ that - the manager of the company, during . the entire period, was a Air. George Sammis; that it was not a fact that the company had disbanded, and that she left the company because she was discharged for incompetency, or because she was an absolute failure as ah actress; that she made, a complaint to Sammis that she was incompetent to perform her parts in consequence of illness; that Sammis understood that she was ill; that after they had opened the season the witness told Sammis' how ill she was; that it was impossible to attend to the business matters; that' she was very nervous and ill, ■and that she had better close right there ; that after that conversation with Sammis she played about five weeks. ■ Upon her redirect ■examination she again testified to her condition during the time she was conducting this theatrical tour. The defendant called Sammis ■as a witness, who testified that he was a theatrical manager, and had made the contract with the plaintiff which she had testified to ; that she performed as an actress in'connection with a company of which he was manager during the month of September, 1897 that they ■opened their rehearsals some two or three weeks previous to September when the performances commenced ; that during that time the witness saw the plaintiff every day ; that they rehearsed all day as a rule, commencing at about ten, terminating for lunch or dinner, and starting again in the afternoon and continuing until probably four or five o’clock; that during that period the witness had •occasion to observe the condition of health in which the plaintiff was. He was asked to state “ what you observed in that connection ? ” That was objected to on the ground that it was incompetent for the witness to state what plaintiff’s condition of health was. 'The court sustained the objection, to which the defendant excepted. ■Counsel for the defendant then asked the witness whether during the period of two or three weeks’ rehearsal preceding September 5,1897, the plaintiff ever complained to him of ill-health. That was objected to by the plaintiff, the objection was sustained, and the defendant •excepted. The witness was further asked if during the entire period you observed anything in the appearance of the plaintiff which indicated to you that she was otherwise than in good health, ■or did she ever during that period make any complaint to you that ■she was suffering from illness of any kind ? ” That was objected to upon the same ground, the objection was sustained, and the defendant excepted. The witness was also asked to state what her appear■ance was during this period of two- months that she was working under the management of the witness 'in connection with this- comr pany as compared with her appearance the. year before. That was also objected to, the objection was sustained, and the defendant ■excepted.'

We think that these rulings were error. The nature and extent of the injuries received by the plaintiff was one of the questions most' strenuously litigated upon the trial. The plaintiff had given testimony tending to show that her condition through the summer -and fall of 1897 was the result of the injuries that' she had received in alighting from the defendant’s car, and that she had been compelled to give up this theatrical tour because of the condition of her health, the result of the injuries sustained. She had ■described her own condition during the time that -she was acting under the management of Sammis, both upon her direct and cross-•examination. She had stated that Sammis knew that she was sick; ■that she had on several occasions made statements to him as to her '■physical condition. Certainly the defendant was entitled to show what her appearance was at the time she was conducting this theatrical enterprise, how she looked and how she acted, and to prove •any declarations made by the plaintiff as to her condition at that ■time. It is difficult to see upon what principle these questions •could have been objected to, or excluded. The witness was not ■■asked to give a medical opinion as to the condition of the plaintiff’s health, but to detail to the jury what he saw as to her condition; •and his evidence as to the appearance of the plaintiff was as competent upon that subject as the jilaintiff’s evidence was as to her ■condition.

The respondent calls attention to the fact that the witness subsequently did answer the question, and the record shows that the witness subsequently said: The lady looked or apjieared to me .about the same, as near as I can remember, while working under my management, as compared to the way she appeared before the acci•dent.”- This was not, however, by any means an answer to the -questions. The witness was not allowed to state what he saw as to ■■the plaintiff’s condition, what she actually accomplished when working, and what indications he noticed as to her vigor and health. We think, on the whole, that competent evidence, most material to the defendant upon this question of the amount of damages, was •excluded. The witness' was also asked why the company was disbanded, which was objected to as immaterial to the issues, and the ■objection was sustained. Counsel 'then. stated that he wished to ¡show by the witness that the plaintiff presented the resignation after she had been told that she was a failure, that the company would not play any longer and was about to be disbanded, and that then she gave her two weeks’ notice, The court then stated : “ I understand Mr. Scribner wants to go into the reasons for stopping playing,” to which counsel for the plaintiff said : “ That is not an issue,” and the court ■ then sustained the objection, and the defendant excepted. "While' the. form of this question might be objectionable, we think the • defendant was entitled to show why it was that this company was ■ disbanded, to contradict the testimony of the plaintiff that she stopped playing because of her bad health. The defendant was certainly entitled to show that Sarnmis had notified her that the,theatrical enterprise was a "failure because of her inferior acting and that it was for that.reason that the company disbanded. The. plaintiff’s testimony all through tended to show that she was disabled from continuing this theatrical "enterprise because of the condition of her health as the result "of this injury. Any facts which would tend to contradict this testimony or tend to show that this enterprise was not given up in consequence of the plaintiff’s health, but in con-' sequence of. her failure as an actress, would be competent evidence. Although the verdict ■ in this case was not large, as the defendant was entitled to have the evidence before the jury in determining the amount which the plaintiff was entitled to recover, we cannot say that the evidence would not have affected the verdict.

It follows that the judgment and order must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. j., and Hatch concurred ; Rumsey, J., concurred in "result; Patterson^ J., dissented.

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