
    Ella J. T. Roche, Resp’t, v. Brooklyn City and N. R. Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 19, 1887.)
    
    1. Evidence—Statement by party that he suffers pain.
    The bald statement, made iong after an injury by the party injured to a third person, that he suffers from pain, ought not to be admitted as in any degree corroborative of his testimony as to the extent of his pain.
    2. Same.
    
      Held, also error to permit such a witness to prove declarations of plaintiff that her arm pained her very much, even though at the time she showed her arm, and it was swollen and red The appearance of the arm he could describe, but her declaration that it pained her very badly is mere hearsay, and should not have been permitted.
    
      Samuel D. Morris, for app’lt; George W. Roderick, for resp’t.
    
      
       Reversing 34 Hun, 631, mem.
      
    
   Peckham, J.

—The only question in this case arises upon the admission of the testimony of a third party that the plaintiff, some days after the happening of the accident which caused her injury, complained that she was suffering pain in her injured arm. The witness did not testify that on these occasions the plaintiff screamed or groaned, or gave other manifestations of a seemingly involuntary nature indicative of bodily suffering, but he proved simple statements or declarations made by plaintiff, that she was at the time of making them suffering pain in her arm. The plaintiff was herself sworn, and proved the injury and the pain. The condition of the arm the night of the accident was also proved; that it was very much swollen and black all around it, and subsequently red and inflamed, and continued swollen and inflamed more or less for a long time. Tne defendant challenges the evidence of complaints of pain thus made, on the ground that it was incompetent, and the argument made was that the evidence as to the injury and its extent could not be thus corroborated by mere hearsay.

Prior to the time when parties were allowed to be witnesses, the rule in this class of cases permitted evidence of' this nature. Caldwell v. Murphy, 11 N. Y., 416; Werely v. Persons, 28 id., 345. These cases show that the evidence was not confined to the time of the injury, or to mere exclamations of pain. The admissibility of the evidence was put, in the opinion of Judge Denio, in 11 N. Y., supra, upon the necessity of the case, as being the only means by which the condition of the sufferer as to enduring pain could, in many instances, be proved. Substantially the same class of evidence was admitted in England, and for the same reason. See cases cited in 11 N. Y. In Massachusetts, too, the same rule was applied.' Bacon v. Charlton, 7 Cush., 581; cited and approved in Roosa v. Boston Loan Co., 132 Mass., 439.

After the adoption of the amendment to the Code, permitting parties to be witnesses, the question under discussion was somewhat mooted in Reed v. Railroad, 45 N. Y., 574, by Allen., J., in the course of his opinion, although the precise point was not before the court. The question there under discussion was as to the correctness of permitting the plaintiff to prove his declarations made at the time he was doing some work, to a third person, as to the state of his health. That is not exactly like the case of complaints, made, not as to a state of health, but as to a then present existing pain at the very spot alleged to have sustained injury, and proved so by other evidence; still the remarks of Judge Allen, on this kind of evidence in general, bear strictly upon the matter herein discussed. He reviewed in his opinion some of the above cases and others, and claimed that the courts had admitted the evidence from the necessity of the case, as being the only method 'by which the condition of the party could be shown fully and completely, not only as to appearances, but also as to suffering. But there was no agreement by the court upon that branch of the case, the judgment going upon another ground.

The case of Hagenlocker v. Brooklyn R. R. (99 N. Y., 136) decides that, even since the Code, evidence of exclamations indicative of pain made by the party injured is admissible. The case does not confine proof of these exclamations to the time of the injury. The question was asked of the plaintiff’s mother: “How long after injury was your daughter confined in the bed?” “ Sire was for about four weeks.” “What expressions did she make, or what manifestations, showing that she suffered pain ?” This shows there was no confinement of the evidence to the time of the injury. The evidence given, however, was of screams when the plaintiff’s foot was touched, and of her exclamations of pain when even the sheet was permitted to touch the foot. The evidence was permitted on the ground that it was of a nature which substantially corroborated the plaintiff as to her condition. Having thus admitted evidence of this kind since the adoption of the Code amendment permitting parties to be witnesses, the question is whether there is such a clear distinction between it and evidence of simple declarations of a party that he was then suffering pain, but giving no other indications thereof, as to call for the adoption of a different rule. It seems to us that there is. . Evidence of exclamations, groans and screams is now permitted, more upon the ground that it is a better and clearer and more vigorous description of the then existing physical condition of the party by an eye-witness than could be given in in any other way. It characterizes and explains such condition. Thus, in the very last case cited, it was shown that the foot was very; much swollen, and so sore that the sheet could not touch it. How was the condition of soreness to be shown better than by the statement that, when so light an article as a sheet touched the foot, the patient screamed with pain ? It was an involuntary and natural exhibition and proof of the existence of intense soreness and pain therefrom. True, it might be simulated, but this possibility is not strong enough to outweigh the propriety of permitting such evidence as fair, natural and original corroborative evidence of the plaintiff as to his then physical condition. Its weight and propriety are not, therefore, now sustained upon the old idea of the necessity of the case.

But evidence of simple declarations of a party, made some time after the injury, and not to a physician for the purpose of being attended to professionally, and simply making the statement that he or she is then suffering pain, is evidence of a totally different nature, is easily stated, liable to gross exaggeration, and of a most dangerous tendency, while the former necessity for its admission has wholly ceased. As is said by Judge Allen in Reed v. Railroad (supra), the necessity for giving such declarations in evidence, where the party is living and can be sworn, no longer existing, and that being the reason for its admission, the reason of the rule ceasing, the rule itself, adopted with reluctance and followed cautiously, should also cease. With the rule as herein announced there can be no fear of a dearth of evidence as to the extent of the injury, and the suffering caused thereby. The party can himself be a witness, if living, and, if dead, the suffering is of no moment, as it cannot be compensated for in an action by the personal representative under the statute, and the exclamations of pain, the groans, the sighs, the screams, can still be admitted. But we are quite clear that the bald statement, made long after the injury, by the party, that he suffers from pain, ought not to be admitted as in any degree corroborative of his testimony as to the extent of his pain. For these reasons, the evidence of Mr. McElroy, as to the plaintiff’s declarations of existing pain, when they were walking in the street together, long after the accident, should not have been received. It was error, also, to per • mit the same witness to prove declarations of the plaintiff that her arm pained her very much, even though at the same time» she showed her arm, and it was swollen and red. The appearance of the arm he could describe, but her declaration that it pained her very badly is mere hearsay, and should not have been permitted.

The judgments of the general term and circuit should be reversed, and new trial granted; costs to abide event.

AH concur, except Danforth, J., dissenting.  