
    Otto Niendorff, Respondent, v. The Manhattan Railway Company, Appellant.
    
      Negligence — assault by the gateman of an elevated railroad—§5,000 damages, when not excessive—hypothetical questions—evidence as to future pain—recalling-plaintiff’s expert in rebuttal — loss of time entitles one to nominal damages.
    
    In an action "brought to récover damages resulting from injuries caused by an ■ alleged assault made upon the plaintiff by a gateman of the defendant, an . elevated railway .company, it appeared that a misunderstanding arose between ■ the plaintiff and the .gateman, who insisted that the plaintiff should purchase . another ticket,- while the plaintiff insisted that he had already purchased one and put it in .the box; the gateman finally attacked the plaintiff and kicked him:,' the result of Which was a swelling in the groin of the plaintiff, who was ' obliged to-go to a-hospital, where’liewas operated upon,-and where he was :■ confined for six weeks. .The jury rendered a verdict in favor of the plaintiff , of §5,000. ' • ;
    
      Held, that the verdict was not excessive and'should not be disturbed.
    The plaintiff's physician, who performed the operation in the hospital, testified ' ás'an expéft 'on his behalf,'and stated that his testimony was based upon the1 :: facts which be had-previously related to the. jury.
    
      
      Held, that it was unnecessary, in asking the question, to repeat his testimony to him in the form of a hypothetical question.
    The court refused to strike out that part of the physician’s testimony in which he stated that there might he future pain, although the evidence showed that upon cross-examination the witness modified his views upon this point.
    
      Held, that notwithstanding the fact that the physician had so modified his views, his direct testimony ought not to have been stricken out, but was properly submitted to the jury for what it was worth;
    ■That the utmost that the defendant was entitled to, even if the cross-examination entirely destroyed the direct testimony, was an instruction to the jury to disregard the latter.
    It is within the discretion of the court to permit the plaintiff, after the defendant has rested, to recall an expert with a view to rebutting the testimony of an expert produced by the defendant.
    Although a plaintiff does not prove his actual loss in money while disabled, if he proves a'loss of time he is entitled to at least nominal damages.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Court of Common Pleas for the city and county of New. York in favor of the plaintiff, entered in the office of the clerk of said court on the 16th day of April, 1895, upon the "verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Julien T. Davies and Joseph H. Adams, for the appellant.
    
      Clarence Lexow and George M. Mackellar, for the respondent.
   Barrett, J.:

The plaintiff was a waiter in a Franklin street restaurant. Upon the 12th. of September, 1891, after an unusually protracted service, he started to go home. This was about half-past two o’clock in the morning. He thereupon took one of the defendant’s trains at the Canal street and Bowery station, intending to get off at Thirty-fourth street. But he fell asleep while the train was proceeding up-town, and only awoke when it reached the Ninety-ninth street station, where he got off. Thereupon, he purchased his ticket for a fresh passage down town, and dropped his ticket into the proper box. A point is made' that the plaintiff upon, cross-examination stated that he threw this ticket at the-box, and that it may have fallen upon .the floor of the platform. This point, however, is of but little' moment, as it is clear that the defendant’s agents were aware . of the purchase and actually received the ticket for cancellation. There is, in fact, but little doubt that the ticket was placed in the box in the usual way. A misunderstanding upon the subject arose between the plaintiff and the defendant’s gateman. The gateman required the plaintiff to purchase another ticket, and the plaintiff insisted that he had already purchased one, and that the gateman would find it in the box if he looked there. Upon the arrival of a down-town train an altercation ensued between them; The plaintiff started to get on the train, and the gateman sought .to prevent his.doing so. At this point the gateman resorted to violence, seizing the plaintiff by the collar and throwing him backward.. The plaintiff again and again protested that he had paid his fare, and told the gateman that if he still doubted him, it would be better to get a police officer. The gateman replied that he was the officer, and followed the remark up with a violent attack. He struck the plaintiff in the face, and kicked him. He tried, to throw him from the platform down upon the railroad tracks. The plaintiff defended himself as best, he could, but without much success, for he was severely injured before the gateman was finally dragged away by another of the defendant’s employees. It is not necessary to detail the plaintiff’s injuries.

The severest injury undoubtedly resulted from kicks in the abdomen and groin. The groin at once commenced to swell. This swelling increased day by day, notwithstanding local treatment.. A few days later the plaintiff went to a hospital, where he was put to bed and treated. But the treatment was inadequate to relieve the increasing symptoms, and finally he was compelled to. undergo a painful surgical operation. He remained under treatment at the hospital for six weeks, suffering more or less pain all the time. The jury awarded the plaintiff $5,000 damages. We have examined the case carefully, and upon the whole we can see no reason for disturbing the verdict. There was a conflict of testimony with regard to the altercation, but we cannot say that the verdict .was against the weight of evidence. The plaintiff’s story seems more natural and credible than that of the defendant’s witnesses. It is fairly corroborated, too. The story told-by the gateman is overdrawn.. He was, on his own showing, altogether too civil, too gentle, too entirely, on the defensive. And the plaintiff is pictured as too coarse, too brutal, too wantonly aggressive. His story was improbable, too. He says there was in the end no question about the plaintiff’s fare; that he knew it had been paid; and that the real. trouble was with two other passengers. Thus he would have us believe that there was no attempt to prevént the plaintiff from getting on the train, and that the altercation was' initiated by the plaintiff’s causeless,, senseless and wholly wanton attacks upon him. We think that the* weight cf credible testimony was with the plaintiff as to the occurrence. As to the damages, while they were certainly liberal, we-cannot say that they were excessive. The injury was severe, the-operation painful and the suffering great. Whatever the doctors: may think about it, the fact remains that the plaintiff’s suffering has; in a degree continued, and is likely to continue; that there is a scar upon his groin,; and that he is not the same man physically that he was before the injury. We need not detail the testimony on this head. Suffice it to say that it fairly supports the verdict. The amount is not so large as to warrant the conclusion that the jury were influenced by partiality or prejudice or by any other improper motive. Considering the plaintiff’s condition in life and the nature* of the injury, we might have been better satisfied with a somewhat, smaller award, but our discretion does not supplant that of the jury,, and we cannot say that the verdict was excessive within the settled, rule upon that head.

We will now consider the various exceptions taken by the; appellant.

(1) The testimony of the plaintiff’s expert was objected to because-it was not given in response to a hypothetical question. This expert,, however, was the very physician who performed the operation in. the hospital. He distinctly stated that his expert testimony was; based upon the facts which as a physician he had previously narrated to the jury. “I am speaking now,” he said, “of the condition which I have already described to the jury. Question. And that: exactly? Answer. Yes, sir.” It was unnecessary to repeat the. physician’s testimony in the form of an hypothesis. One of the purposes "-of an hypothetical question is to prevent the expert, from giving his opinion upon facts known to himself or mentally-assumed by him, but not communicated to the jury. Here the* expert’s opinion was given upon the exact physical condition which he. had observed and described. He emphasized this observation and description throughout. Thus the jury heard every fact upon which the opinion was based. The opinion was not based upon other testimony in the case, nor upon hearsay, nor upon any foreign assumption.. It was strictly limited to deductions from the physical "condition which the expert had personally observed, and which as a witness he had fully described." Hnder these circumstances it was not necessary to group the facts thus narrated into the form of an hypothesis. That would have been an idle ceremony. It was clearly competent for the same person, as an expert, to give his opinion upon the facts, which, as a physician, he had observed and narrated.

(2) There was no error in refusing to strike out that part of the physician’s direct testimony where he stated that there may be future pain following the plaintiff’s condition. . The contention is that the witness entirely receded from this position upon his cross-examination. Such, however, is not the fact. He undoubtedly modified his views on that head, and it may be that this modification rendered the direct testimony of but little value with respect to future pain. But that was no reason for striking it out. It was properly in the case, and it was for the jury to say, after hearing the cross-examination,- what consideration, if any, it merited. The utmost that the defendant was entitled to, even if the cross-examination entirely destroyed the direct testimony, was an instruction to disregard the latter. (Gawtry v. Doane, 51 N. Y. 84; Platner v. Platner, 78 id. 90; Pontius v. People, 82 id. 339.) The defendant made no such request, and that which it did make was properly denied.

(3) The defendant also objected to the court’s permitting the plaintiff to recall this physician as an expert after it had rested. This was a matter of discretion and the discretion was not abused. Indeed, the court expressly limited the plaintiff in this examination fo rebutting the testimony of the defendant’s expert. The plaintiff was not bound.to forestall the defense. He proved the injury and the grave symptoms which immediately and naturally followed. Ifhe defendant then attempted to prove that these symptoms resulted not from the assault, but from an old malady. It then became entirely proper to permit the plaintiff to meet this new aspect of the case, and to show that the old malady had nothing to do with the injury.

We may add upon full consideration of the careful analysis which the defendant presents of this expert’s testimony, that in our judgment the malady in question had nothing whatever to do with the condition of the plaintiff’s groin, and that the operation already referred to was necessitated solely by the kick' which he received in that part of his body from the defendant’s employee.

(4) The remaining questions presented by the appellant are trivial and without merit. The learned judge stated the general rule upon the subject of damages when he charged that they might take into consideration the plaintiff’s loss of time as well as his pain and suffering. It is true that what the plaintiff actually lost in money while he was laid up was not proved. But, having proved the loss of time, he was at least entitled to nominal damages. (Leeds v. Met. Gas Light Co., 90 N. Y. 26; Feeney v. The L. I. R. R. Co., 116 id. 375; Baker v. Manhattan R. R. Co., 118 id. 533.) The defendant did not request the court to charge that the award on this head should be limited to nominal damages. It confined itself to a general exception to his fair statement of the ordinary rule; and we have no reason to believe, from aught appearing on the record, that the damages for loss of time exceeded the nominal sum which the jury were authorized to award.

The criticism upon the statement of the trial judge that the jury could not give the plaintiff more than $10,000, because that was the limit of his claim, is hypercritical. There was not the slightest intimation that they should give the plaintiff $10,000 or any other sum. There was no suggestion even of an opinion upon the subject. In fact, the observation was in the defendant’s interest, and was called for by a request to charge the jury that they are “not to deal with this case as if it were their own case, nor are they to give this plaintiff such' a sum as they would like to have themselves under the same circumstances.” To this the court replied : “ That is the fact. You are to give him what he ought to have.” The plaintiff’s counsel then asked the court to charge that, if they found for the plaintiff, they were entitled to find for any sum up to $10,000, the amount claimed. And the court said:- “ You cannot give more than $10,000, because that is the limit of the plaintiff’s claim.” The present criticism upon this statement is evidently an afterthought. It- did not at the trial affect the defendant’s counsel as being specially- momentous; for the only observation which then followed the statement was, that, as the pleadings were not in evidence, the counsel excepted to its being stated. The idea that twelve ordinary citizens were influenced by such a remark is farfetched. Jurymen are not such- liot-house [flants as unsuccessful appellants would have us believe.

There are no other questions calling for special consideration, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien • and Ingraham, JJ., concurred.

Judgment and.order affirmed, with costs.  