
    Popp v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1889.)
    1. Contributory Negligence—Province of Jury.
    In a suit for personal injuries, where the defense is the contributory negligence of plaintiff, the question is one of fact for the jury, unless the negligence is gross and inexcusable.
    
      2. Damages—Pleading and Pbooe.
    Where the complaint alleges that the injuries rendered plaintiff “incapable of labor, ” evidence of plaintiff’s customary earnings is admissible.
    3. Evidence—Expebt Testimony.
    A physician may testify in such case as to whether, judging from the length of time'the pain had lasted since the injury, it is “ highly probable—reasonably certain—it will continue. ”
    
    Appeal from circuit court, Monroe county.
    Michael Popp sued the New York Central & Hudson River Railroad Company for damages for injuries received. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      A. H. Harris, for appellant. W. 3. Oliver, for respondent.
    
      
       Respecting the admissibility of expert testimony in regard to the probable cause and result of personal injuries, see Peterson v. Railway Co., (Minn.) 39 N. W. Rep. 485, and note; Bailey v. Westcott, 4 N. Y. Supp. 482, and note.
    
   Dwight, J.

After a careful perusal of the evidence in this case, we come-

to the same conclusion as that reached by the trial judge, on the motion at special term, that the case furnishes no exception to the rule so constantly declared, in cases of this character, that, where any inference is to be drawn from the evidence bearing upon the question of cpntributory negligence, that inference must be drawn by the jury. Weber v. Railroad Co., 58 N. Y. 451; Stackus v. Railroad Co., 79 N. Y 464; Sherry v. Railroad Co., 104 N. Y. 652, 10 N. E. Rep. 128; Parsons v. Railroad Co., 21 N. E. Rep. 145. In the-last ease cited, the court, by Ruger, C. J., after defining, in familiar language, the degree of care to be required of the party injured, say: “This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.” The case at bar was not within the exception thus strictly defined. The motion for a nonsuit, on the ground of contributory negligence, was properly denied.

The two remaining exceptions relate to rulings .upon questions of evidence. A physician, Dr. Jones, who had treated the plaintiff for the injuries complained of, after describing those injuries, and the condition of the patient down to-the time of the trial, was asked by the plaintiff: “Judging from the length of time the pain had lasted since the injury, state whether you think it highly probable—reasonably certain—that it will continue.” The question was objected to by the defendant, “as too speculative and remote.” The objection was overruled, and the defendant excepted. The witness answered: “I think the chances of his not getting well, and being perfectly free from pain and trouble with that side, after this length of time, would be in favor of his not getting well. I think there will be more chances of his not getting entirely well than of his getting entirely well. ” Counsel for the defendant moved to strike out the testimony, which was refused, and an exception taken. At the opening of the court the next morning, counsel for the plaintiff asked that this testimony be stricken out. The court complied with the request, and instructed the jury to disregard the evidence in question; to which ruling and instruction counsel for the defendant excepted. In its charge, also, the court instructed the jury that the testimony of Dr. Jones on the question of the probable permanence-of the plaintiff’s injuries had been stricken out of the case, and was not to be considered by them at all. We think, under the authority of Griswold v. Railroad Co., 21 N. E. Rep. 726, that the evidence objected to was properly received. In that case, the court, by Finch, J., distinguishes the cases of Strohm, v. Railroad Co., 96 N. Y. 306, and Tozer v. Railroad Co., 105 N. Y. 617, 11 N. E. Rep. 369, and points out the “obvious difference between an opinion as to the permanence of a disease or injury already existing, capable of being examined and studied, and one as to the mere possible outbreak of new diseases or sufferings having their cause in the original injury. ” We think the opinion testified to by Dr. Jones in this case was clearly within the former category, and not the latter, and was therefore properly received in evidence.. The request of counsel for the plaintiff to strike it from the case was probably made “for greater caution.” The exception of the defendant to the ruling striking out the evidence was, of course, unavailing, and its exception to tlieoriginal ruling by which it was admitted was not well taken, under the authority of the Case of Griswold, supra. Evidence was received of the value of the plaintiff’s customary earnings. It was objected to on the ground that no cause of action for special damages was alleged in the complaint. The objection was not well taken. The complaint did allege that the injuries complained of rendered the plaintiff “incapable of labor;” and the rule seems to be established that evidence of loss of time, and, consequently, of the value-of time lost, is admissible under an allegation of general damages. Ward v. Vanderbilt, 4 Abb. Dec. 521; Leeds v. Gas-Light Co., 90 N. Y. 26; Cabot v. McKane, 1 N. Y. St. Rep. 495. We think, moreover, that the allegation in this complaint of inability to labor, produced by the injury, was sufficient to-bring the case within the doctrine of Ehrgott v. Mayor, 96 N. Y. 275. The-judgment and order appealed from should be affirmed. All concur.  