
    Simon Blate, Respondent, v. The Third Avenue Railroad Company, Appellant.
    Negligence— collision between a wagon and a cable car — duty of the injured person as to the means to be adopted for his cure.
    
    In an action brought to recover damages for personal injuries, the evidence tended to show that the plaintiff was driving a wagon about twenty-five feet long, northerly along Third avenue in the city of New York on the east side of the street, and authorized a finding that when he had reached a point between Eightieth and Eighty-first streets, and when a cable car operated by the defendant was north of the northerly crossing of Eighty-first street and homing.south at the full speed of the cable, the plaintiff proceeded to cross the avenue at a slow trot; that upon seeing the car he whipped up his horse, blit that although he was in plain sight the car continued at its original speed and Struck the tailboard of his wagon, causing the injuries complained of. The evidence also tended to show that the plaintiff had reason to believe when hé attempted to cross the street that he would he able to do so in safety.
    
      Mold, that the jury were justified in concluding that the defendant was guilty of negligence, and that the plaintiff was free from contributory negligence.
    It cannot be said, as a matter of law, that a person who has sustained personal injuries through the negligence of another is bound to use any particular means to reduce the damage, unless the particular means would necessarily have that result and would he such as a reasonable and prudent man would use; he is not hound as a matter of law to use a particular means to effect 6, cure which would or might cause him to suffer more serious injury or death,
    A jury cannot say that the injured person should have adopted any particular means to effect the result, but can only determine whether the means actually adopted by him were such as a reasonably prudent man would adopt, in which . event the injured person is entitled to his damages as presented to the jury; if •.the jury determine that the means used were not such as a reasonably prudent man would use, they must take that into consideration in reaching their verdict.
    "What charge, concerning the duty of the injured person to undergo a surgical operation which might effect a radical cure, correctly states the rule, considered.
    Appeal by the defendant, The Third Avenue Railroad Company, 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 10th day of February, 1899,-upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 28th day of February, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Herbert R. Limburger, for the appellant.
    
      Sumner B. Stiles, for the respondent.
   Rumsey, J.:

The plaintiff, while attempting to cross Third avenue in the, city of New York with a horse and wagon, came, in collision with a car of the defendant’s road coming down the avenue, and received serious injuries, to recover for which he brought this action. At the trial he had a verdict. A motion for a new trial was denied, and after the entry of the judgment on the verdict this appeal was brought by the defendant, both from the judgment and the order denying a new trial.

It is claimed by the defendant that upon the evidence the plaintiff was clearly guilty of contributory negligence. Just before the accident, plaintiff was proceeding up Third avenue on the east side of the street; he was seated on a furniture wagon,, which was about twenty-five feet long. When he reached a point between Eightieth and Eighty-first streets he attempted to cross the avenue to a place on the other side, where he had some business, and ás he was crossing the. avenue a cable car, coming from the north, collided with the wagon.

The jury might have found from the evidence, although on this point the testimony was conflicting, that when the plaintiff attempted to cross the street he was proceeding at a slow trot; that at that time the cable car was north of the uptown crossing of Eighty-flfst street, and was coming south at the full speed of 'the cable, They might have found, also, that the plaintiff, upon seeing the car, whipped up his horse and increased his speed considerably, and that, although the plaintiff was in plain sight, the car was not stopped," nor was its speed slackened in the slightest degree. There is no doubt but that both parties were in plain sight of each other.

The evidence shows that, although the car continued at its original speed, the plaintiff was yet able to get so nearly across the track that the approaching car only struck the tailboard of his wagon, so that if the speed of the car had been slackened he would have succeeded in crossing without a collision. The jury might have found, •also, that the plaintiff had reason to believe when lie started to ci'oss the street that he would be able to do so without colliding with the car. In view of all these facts, and of what is now established to be the reciprocal duty of a driver of a car toward one attempting to cross a street (Kennedy v. Third Ave. R. R. Co., 31 App. Div. 30; Lawson v. Met. St. R. Co., 40 id. 307), there can be no doubt that the plaintiff was not guilty of contributory negligence as a matter of law, and that the jury were justified in concluding .as a fact, not only that the plaintiff was not guilty of contributory negligence, but that the defendant failed in its duty towards him and was guilty of negligence.

We have examined the defendant’s exceptions taken to the rulings on the testimony, and are satisfied that there are no errors in them.

Great stress is laid to the charge of the learned trial justice on the question of damages. The facts were that as a result of the •collision the plaintiff suffered a rupture in the groin, which caused him, as the jury have found, considerable inconvenience and no little pain, and was at the time of the trial growing worse. It is quite evident that the damages which wére given by the jury were based in a very considerable amount upon this rupture. The evidence of surgeons was given, not only as to the existence of the rupture as the result of this accident, but also as to the probability of its cure, if the plaintiff would submit to a surgical operation,. The defendant’s expert testified that such an operation would almost certainly result in a cure, but the physicians sworn on behalf of the plaintiff, while admitting that such an operation would probably result in a cure, said that it was by no means certain.

It was stated by the plaintiff’s witnesses that such an operation would be dangerous to life, hut the expert surgeon sworn on behalf ’of the defendant said it was not now really dangerous to. life, although six or eight years ago it was considered a dangerous operation. In view of that condition of the evidence, the defendant insisted that it was the duty of the plaintiff to submit to an opbration which would be practically certain to result in a cure, and because he did not do so he was not entitled to recover damages for a permanent or continuing rupture.

On that branch of the case the learned trial justice charged the jury : “ Something has-been said to you-regarding the possibility of the plaintiff having had a radical cure effected by submitting himself to a surgical operation; I charge you upon that subject that a person who has been injured by an accident of this kind is bound to pse.the usual and reasonable remedies which are appropriate to-alleviate or cure such an accident as he has suffered. He is not permitted to increase and enhance the damages which- he has suffered by negligently or carelessly or willfully permitting his condition to get worse than it would be if properly .treated. At the same time, no man is bound for the purpose of reducing the amount of damages which he may be entitled to recover from a person who ¡has done him a wrong, no man is bound to submit himself to a surgical operation which may even in the remotest degree he an operation attended with danger. That is a matter which he must determine? for himself, and if he, through apprehension, or for any other cause, has determined that he will not submit himself to such an operation, the defendant is not entitled to take advantage of his failure to do so. At the same time, you are to take into, consideration, determining the amount of injury which this man has suffered -and the permanency of his injury, all the testimony that you have heard from'the experts upon the subject of the possibility of curing £V disease of this kind by a surgical operation, and the slight inpon» venienee which is said to result from such operation in most cases.”

To this charge as an entirety an exception was taken. Counsel for the defendant insists that the charge, was erroneous, but he .made no request to the court to modify it, or to charge more fully upon any proposition contained in it, so that if the propositions chaigbd are correct defendant cannot complain that-the court should hav© charged more fully in regard to them. The rule of damages in such cases is not at all doubtful. It is, that the party who claims to have suffered damage by the tort of another party is bound to use reasonable and proper efforts to make the damage as small as practicable, and that he is not entitled to recover for any damage which, by the use of such efforts, might have been avoided, because they are not to be regarded as the natural result of the tort. (8 Am. & Eng. Ency. of Law [2d ed.], 605.)

The question in every case is whether the plaintiff has used such means as were at hand to reduce his damages as a reasonably prudent man would have used. It cannot be said as a matter of law that he is bound to use any particular means, or to do any particular thing (unless that thing is one which would necessarily result in reducing the damage, and which a reasonable and prudent man would use). If, in any given case, it appears that the particular means which may be used to effect a cure would or might cause greater injury, or produce serious results, quite clearly the injured person would not be called upon, as a matter of law, to take the chances of suffering more serious injury or death, for the purpose of reducing thé damage.

While the person who inflicts the damage has the right to say that sure and safe means to diminish .the evil results of the accident, if any such exist, must be used, yet that is the extent of his right. Whether further means should be resorted to is for the plaintiff to determine. In making that determination, the plaintiff has the right to consider the nature of. the means used to effect a cure, and the possible or probable effect upon himself. He has to determine for himself whether he is to resort to those means in view of those considerations. In any given case, it maybe that the treatment which is given to the plaintiff is not the best that could be devised, but the plaintiff is not the less entitled to his damages on that account if, in taking that treatment, he has consulted such a physician as a reasonably prudent man would consult.

The jury, in getting at the damages, are to say not only what they are, but whether the means used by the plaintiff to reduce the damages were such as an ordinarily prudent man would use. They cannot say that he should or should not have taken the advice of any particular physician, nor that he should have obtained any particular kind of treatment. As to that he must himself be the judge. But when he has determined what treatment to take, it will yet be for the jury to say if, in making that determination, he used the means that a reasonably prudent man would take to cure himself of his injury. If he did, he is entitled to recover for his damages as they are presented to the jury. If he did not, and the jury can say that some other treatment would have brought about a cure, and that treatment was one that a reasonably prudent man would have submitted to, then they must say.that he has not used the care which a reasonably prudent man would use to reduce the damages, and must take that into consideration in reaching their verdict.

That is what was substantially said to them by the learned trial justice. The law lays down no hard and fast rule as to the duty of the plaintiff under such circumstances. Whether an operation for his ailment, which might endanger his life in any degree, must be submitted to, is a question which the law cannot answer, nor does iit lie in the mouth of a jury to say that the plaintiff should or should not do any particular thing. They are concerned simply with the affairs presented to them at the trial, and whether the damages then appearing to exist are the natural and probable result of the injuries diminished by the efforts for a cúre which a reasonably prudent man would have made. This is substantially what was said by the learned trial justice, and with this statement of the law we are content;

If the jury concluded, as they might, that the serious injuries which the plaintiff received were the natural and probable result of this injury tested by these rules, they were quite justified in giving him a verdict for the amount which they did, and the damages were not excessive.

The judgment and order must, therefore, be affirmed, with costs.

Van Brunt, P. J., Barrett, Ingraham and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs.  