
    Margaret Caven, as Administratrix of Maria Forgie, Deceased, Appellant, v. The City of Troy, Respondent.
    
      Negligence—norecovery for an act of negligence not pleaded — charge as to what is a public highway — a mistake in the treatment of an injured person is not a defense — certificate that a case contains all the evidence.
    
    In an action based upon the defendant’s alleged negligence, the plaintiff cannot recover for an act of negligence not stated in the complaint.
    In an action to recover for an injury sustained by the plaintiff upon one of the defendant’s streets, a charge-made by the court to the jury, that “in order to set in operation the provision of the charter (that ‘ all streets * * * used as such for five years continuously shall be deemed and taken to be public streets ’) it must appear that at the time the lands and premises were thrown out for a street, they were in the shape and for the purposes of streets and used as such for five years continuously,” is a fair statement as to the elements requisite to constitute a street and public highway. The instruction, thus given to the jury, is not open to the objection that it assumes that, in order to make a legal public highway of the locus in quo, it must appear that, at the very time it was thrown open, it was in the shape and for the purpose of a street.
    A charge to the jury, “nor would you be authorized in this case, I charge you, to find that the injury was the result of this accident if you come to the conclusion, from all the evidence you have before you, that if it had been properly treated death would not have resulted. * * * If you come to the conclusion that she was neglected, and that by reason of that neglect a situation intervened which resulted in the taking away of her life, then I charge you that for such result the plaintiff cannot recover in this action,” is erroneous.
    A party, injured by the negligence of another, is bound to use ordinary care to effect her restoration and cure, but she is not responsible for a mistake; and while she acts in good faith under the directions of a physician, the mistake of the latter in his treatment will not shield the wrongdoer.
    Where there is no certificate that the case contains all the evidence, the Appellate Division is not in a position to determine whether there was error below in submitting to the jury the question of the plaintiff’s damages or that of the plaintiff’s contributory negligence.
    Appeal by the plaintiff, Margaret Caven, as administratrix, etc., of Maria Forgie, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 21st day of July, 1893, upon the verdict of a jury rendered after a trial at the Rensselaer Circuit, and also from an order entered in said clerk’s office on the 12th day of July, 1893, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from the death of the plaintiff’s intestate caused by her falling into an unguarded excavation, existing in an alleged public highway in the defendant city.
    The provision of the defendant’s charter referred to by the trial judge in his charge to the jury, was as follows:
    “ All streets and avenues in said city which are now opened, or shall hereafter be opened to public use, and shall be used as such for five years continuously, shall be deemed and taken to be public streets and avenues of said city ; and the city of Troy and the said Common Council shall have all jurisdiction and power in respect thereto, the same as if such streets and avenues had been or shall be opened by proceedings had for that purpose under the provisions of this act.” (Laws of 1870, chap. 598, tit. 6, § A)
    
      James Lansing, for the appellant.
    
      William J. Roche, for the respondent.
   Putnam, J.:

The questions to be determined in this case arise out of certain exceptions taken by the plaintiff to the charge of the trial judge.

In our opinion the court below did not err in instructing the jury that if Mrs. Forgie fell in the “Shields” lot and not in Fifteenth street the plaintiff could not recover under the complaint. The negligence charged against the defendant in the pleading was in permitting an excavation to remain in Fifteenth street, without guards or a light, into which the deceased fell and sustained the injury which caused her death. Negligence in not erecting a guard or barrier between the line of the street and the excavation in the “ Shields ” lot, into which Mrs. Forgie perhaps fell, was not alleged or claimed. The court, therefore, properly held that for an act of negligence not stated in the complaint the plaintiff could not recover. It did not instruct the jury that for such an act of negligence, had it been charged in the complaint, the plaintiff could not have recovered under the doctrine established in Jewhurst v. City of Syracuse (108 N. Y. 303). As the negligence of the defendant, if any, in failing to erect a barrier between the street and the excavation in the adjoining lot, was not alleged in the complaint as a ground for a recovery, neither did the plaintiff, when his attention was called to that fact by the charge of. the court, ask for an amendment of the pleading in order that a recovery might be had for the failure of the defendant to erect such barrier.

The court, on the question raised on the trial as to whether the land and premises called “ 15th street ” -was in fact a public highway, was asked by defendant’s counsel to charge as follows: “ In order to set in operation the provision of the charter which you read to the jury it must appear that at the time the lands and premises were thrown out for a street they were in the shape and for the purposes of streets, and used as such for five years continu ously,” and did instruct the jury as thus requested. The learned counsel for the plaintiff urges that this instruction was erroneous, because it assumed that to make a legal public highway of the premises, known as Fifteenth street, it must appear that at the very time it was thrown open it was in the shape and for the purpose of a street. We think the learned counsel gives a rather forced, technical and unreasonable construction to the remark of the learned trial judge. Taking such remark and the charge together, the instructions given to the jury were correct, and fully and fairly placed before it the principles of law applicable to the question involved. Under the circumstances, we are unable to believe that the jury were misled by the- statement of the trial judge above adverted to, or that such statement would justify the granting of a new trial.

The trial judge, in .one portion of his charge to the jury, used the following language : “ Nor would you be authorized, in this case, I charge you, to find that the injury was the result of this accident, if you come to the conclusion, from all the evidence you have before you, that if it had been properly treated death would not have resulted. If you come to the conclusion, from all the evidence before you, that if she had been treated with ordinary care and skill promptly after the accident, death would not have resulted, then I charge you that the plaintiff is not entitled to recover in this action. If you come to the conclusion that 'she was neglected, and that by reason of that neglect a situation intervened which resulted in the taking away of her life, then I charge you that for such result the plaintiff cannot recover in this action.”

If the deceased, acting in good faith and with proper diligence after her injury, employed a physician who made a mistake and treated her improperly, or neglected her, the jury were thus instructed that she could not recover.

The authorities do not sustain the instruction thus given to the jury by the trial court. They establish the doctrine that a party injured by the negligence of another is bound to use ordinary care to effect his restoration and cure; but that he is not responsible for a mistake ; and, acting in good faith under the directions of a physician, the mistake of the latter in the treatment will not shield the wrongdoer. (Lyons v. Erie R. Co., 57 N. Y. 489; Sauter v. N. Y. C. & H. R. R. R. Co., 66 id. 50.)

In Sullivan v. Tioga R. R. Co. (112 N. Y. 643-648) a recovery was sustained, although in that case the deceased party rejected the advice of the physician who attended him. It was held that the question of his good faith in taking care of himself after the accident and his negligence, were for the jury. In Alberti v. N. Y., L. E. & W. R. R. Co. (118 N. Y. 77) the judgment in favor of the plaintiff was affirmed, although the evidence indicated that the plaintiff did not secure the best of medical attendance, such evidence being sufficient to sustain a finding that he was unable to procure such attendance, and had acted in good faith. In Hope v. Troy & Lansingburgh R. R. Co. (40 Hun, 438; affd., 110 N. Y. 643) it was held that if the plaintiff, after an injury caused by the negligence of the defendant, in the care and restoration of herself, acted in good faith, but misjudged as to the proper treatment, she was entitled to recover. Landón, J., in his opinion, remarks: She was not a volunteer in the care of her ailment. The defendant thrust that burden upon her. Her honest misjudgment, under such circumstances, is not negligence. The true question is, who was the proximate cause of those further ills, she or the railroad company ? A wrongful act begins a sequence of harmful effects; an intervening innocently misjudged act of the victim aggravates the harmful effects; but the latter act would have been harmless if the original wrong were not still operative. It now operates more harshly. But it is from its harsher operation that the plaintiff suffers. The original wrongful cause continues to the end and accomplishes the whole result, and is, therefore, the proximate cause.” In Lyons v. Erie R. Co. (supra) it was said in the opinion: “ When one receives an injury through the carelessness of another, he is bound to use ordinary care to cure and restore himself. He cannot recklessly enhance his injury and charge it to another. * * * But suppose he makes a mistake and innocently eats or exercises so as to retard his cure or impair his chances of recovery; or suppose he employs a physician who makes a mistake in his treatment, so that he is not as well or as soon restored as he otherwise would have been; who is to be responsible for the mistake ? Oan the wrongdoer, who has placed him in the position where he must make the choice of remedies and doctors, take advantage of such mistake % Oan he shield himself from all the consequences of his wrong because the injured man has not adopted the best means and employed the best doctors ? I think not.”

Under the authorities cited, that portion of the charge of the trial judge-above quoted cannot be sustained. The deceased, after the injury by the negligence of the defendant, was bound in good faith to take reasonable care of herself. If she did so, although the physician or physicians who attended her did not use proper treatment, or neglected her, in consequence of which the injury caused by defendant’s negligence terminated fatally, the plaintiff was entitled to recover.

It is suggested by the respondent that the evidence given on the trial failed to show that the plaintiff had sustained any pecuniary damages on account of the alleged negligence of the defendant, or to establish the fact of the absence of contributory negligence on the part of the deceased; and, hence, that the defendant was entitled to a judgment of nonsuit on the trial, and as the defendant was thus, on undisputed facts, entitled to a judgment, a new trial should not be granted, although the trial judge may have erred in the portion of the charge above adverted to.

As there is no certificate that the case contains all the evidence, and as it purports merely to include the testimony and proceedings had upon the trial as far as the same is necessary to present the plaintiff’s exceptions taken in the course of the trial and to the charge of the court to the jury, we are unable to determine whether or not the trial court erred in submitting to the jury the questions as to whether the plaintiff had sustained any pecuniary injury in consequence of the negligence of the defendant, or the question as to the contributory negligence of the deceased.

For the reason above suggested the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred, except Pabkee, P. J., not sitting.

Landon, J. :

I concur upon the last ground stated in the opinion. I doubt whether the trial judge was right as to the two propositions first discussed.

Judgment and order reversed and a new trial granted, costs to abide the event.  