
    Maggie Dixon, Plaintiff, v. The Brooklyn Heights Railroad Co., Defendant.
    (Supreme Court, Kings Trial Term,
    July, 1901.)
    Megligence — Mew trial for concealment of a hernia caused by an accident.
    Where a woman, "injured by a railroad accident and examined twelve days later by the company's surgeon, then makes no reference to any injury in her groin, and yet claims upon the trial of her action against the railroad company, more than eighteen months after the accident, that she has a large hernia, caused by the accident, then-begun and which has "since continued to increase, a verdict in her favor for $3,500 will be set aside upon the ground of the surprise to the defendant at the first proof of such a serious injury, and this although the complaint alleged that the plaintiff had sustained serious and lasting bodily injuries, injuries to her head, limbs and nervous system, and internal injuries.
    Motion for a new trial upon the minutes.
    Morris & Whitehouse, for plaintiff.
    Sheehan & Collin, for defendant.
   Russell, J.

The motion for a new trial upon the minutes does not reach the question as to the right of the plaintiff to recover some compensation. It is rightly placed upon the ground of surprise on account of the character of the claim of serious injury, first made known to the defendant upon the trial, and the effect of which could not be wholly realized until the verdict of the jury was pronounced. That verdict was for $3,500, an amount which might be considered excessive but for the claim that hernia was produced by the accident, of which claim it was apparent the defendant could have no reasonable anticipation, partly an account of a fair assumption from the conduct of the plaintiff herself that the injuries for which compensation was demanded were of a different resulting character.

The charge in the complaint averred that plaintiff had sustained “ Serious and lasting bodily injuries, and injuries to her head, limbs and nervous system, as well as internal injuries The manner in which the reference to internal injuries was added to the primary ones alleged might reasonably induce the defendant to believe that no specific troubles of the internal system could be averred. That complaint was verified the 5th day of January, 1900, the accident occurring the 25th of October, 1899.

Twelve days after the accident the plaintiff was examined by the surgeon for the railroad company, at which time she told the surgeon the kind of injuries under which she suffered. She made no reference whatever to any injury to her groin, although she testified upon the trial that such an injury began immediately after the accident, and continued to increase. If this surgeon had insisted upon examining her whole person he would have transgressed his province, and proceeded with a degree of indelicacy which no information from the plaintiff would have justified. Had the railroad company been apprised thereafter of any claim or suspicion that the serious injury of hernia had been caused by the accident, steps could have been taken to have procured a farther examination, so that the defendant would not have been rendered practically helpless to meet this important issue upon the trial.

A fair inference that the plaintiff intended to conceal the most serious basis of her claim for compensation, until displayed upon the trial, arises from her acts adverted to, and from the nonproduction of the physician who attended her in her illness, as we}l as from her not procuring any examination of the hernia by a physician until ten days before the trial, being more than one year and a half after the accident. The physician who attended her during the time she claimed to have been ill from the accident was not advised by her of the serious hernia which she testified to until three weeks before the trial.

The presence of a large hernia more than a year and a half after the accident may be deemed to have been established by the testimony of Dr. Bishop, called as a witness by the plaintiff. Whether it came from the accident depended upon the testimony of the plaintiff herself. To make her testimony, giving her credit for a willingness to tell the entire truth, sufficient to justify an award of damages for the injury of hernia as a proximate result from the injury sustained at the time of the accident', it was necessary 'that she should have,shown conscious perception from the occurrence to the time of her testimony of the origin, continuance and result of the swelling in the groin from her own bodily sensations and personal observation. Therefore, if the appearances were so trifling that she did not think it necessary to mention them to Dr. Riggs twelve days after the accident, or to her attendant physician for the weeks and months during which she sought his help, they are certainly insufficient to furnish reliable proof from her testimony that a hernia as large as an orange, existing a year and a half after the accident occurred, came from that accident itself, and so furnished just cause for very considerable compensation to her from the railroad company.

The interests of justice require that a new trial should be had and the omission to ask to withdraw a juror before the rendition of the verdict, under the circumstances of this trial, is no bar in the way. Tyler v. Hoornbeek, 48 Barb. 197; Continental Bank v. Adams, 67 id. 318.

Upon a new trial, if the claim of the plaintiff is right, she can maintain successfully her demand for damages to their full extent, and the defendant will have a fair opportunity to meet that claim as now displayed. Motion for a new trial granted upon payment of trial fee and trial disbursements.

Motion granted upon payment of trial fee and triál disbursements.  