
    Augusta Lewin, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    
      Assesssment of damages in a negligence case — under what ad,legations as to injury proof of barrenness and insomnia and impaired eyesight is inadmissible.
    
    A judge presiding at an assessment for damages, had after the rendering of a judgment absolute on the affirmance of an appeal by the Court of Appeals, may entertain a motion for a new assessment of damages. Such a motion ia addressed largely to the discretion of the trial judge, and the order made thereon is appealable to the Appellate Division.
    Under a complaint in an action to recover damages for personal injuries which, describes the plaintiff’s injuries as follows, “ fracturing the bones of her face and body, and bruising, hurting, wounding tlie.plaintiff about her head, body, arms and limbs, whereby the life of this plaintiff was greatly endangered; * * * that her health has been greatly and permanently impaired, and her body greatly and permanently injured,” evidence is inadmissible that, in consequence of the injuries inflicted upon the plaintiff, who was a young married woman, she had become barren; that her womb was displaced and. lacerated; that there was a disturbance of the nerve center at the base'of the brain which regulates or affects the distribution of the blood; that her sight' was affected;..that her nervous system was impaired by the severity of the shock, and that she suffered from inability to sleep.
    Where considerable evidence concerning the alleged barrenness of the plaintiff and the injury to her eye was introduced, and the attention of the jury was pointedly directed to such evidence by a discussion of its admissibility, the Appellate Division considered that the effect produced by the introduction of such testimony was not destroyed by a charge to the jury tha,t no recovery could be had on account of such injuries.
    Appeal by the defendant, the. Lehigh Valley Eailroad Company, from an order of the Supreme Court, made at the Monroe' Trial Term and entered in the office of the clerk of the county of Monroe on the 24th day of September, 1901,. denying the defendant’s motion to set aside the verdict of a jury rendered on an assessment of damages in the action, and for a new assessment.
    This action was brought to recover damages for injuries caused by the defendant. A verdict was directed in favor of the defendant at the close of all the evidence and the plaintiff’s exceptions were ordered heard in the first instance at the Appellate Division. The plaintiff’s exceptions were sustained and a'new trial ordered by this court.- The defendant appealed from said, order of the Appellate Division to the Court of Appeals and stipulated that if .the' order .was affirmed judgment absolute should be rendered, against, the said appellant. The order was affirméd in the Court of Appeals and an assessment of damages was thereupon had at a Trial Term of the Supreme Court with a jury, resulting in a verdict for the plaintiff of $10,000. A motion was then made at said term to set aside the verdict and inquest on the stenographer’s minutes, on the ground that the verdict was excessive and that errors was committed during the trial.
    
      George F. Yeoman, for the appellant.
    
      Thomas Raines, for the respondent.
   Spring, J.:

There is no special Code provision for reviewing the assessment of damages made by a jury in cases of this kind. That a motion may be made to set aside- the inquest, was settled in Bossout v. R., W. & O. R. R. Co. (131 N. Y. 37), but the mode of procedure was not outlined. In Yaw v. Whitmore (66 App. Div. 318) the practice suggested, after an extended discussion of the whole matter, was like that adopted in this case.

The hearing before the jury was not a trial in the ordinary acceptation of that term. It was not until very recently by an amendment to section 3251 of the Code of Civil Procedure that a trial fee was allowable upon the assessment of damages,' (Laws of 1901, chap. 527.) . The proceeding is more liberal and free from strict legal rules than upon a trial and is somewhat akin to the various proceedings to ascertain the damages to real estate by means of a commission. While a motion for anew assessment may be entertained by the trial judge and an appeal taken from his order, the motion is addressed largely to the discretion of the court in which the proceeding takes place, and when refused as not tending to the ends of justice a judgment entered upon the inquisition does not become one which is re viewable by the court upon legal grounds.” (Bossout v. R., W. & O. R. R. Co., supra, 41; Bassett v. French, 155 N. Y. 46.) In the present case the complaint, after describing the accident, continues with allegations descriptive of the injuries inflicted upon the plaintiff as follows: “ fracturing the bones of her face and body, and bruising, hurting, wounding the plaintiff about her head, body, arms’and limbs, whereby the .life of this plaintiff was greatly - endangered; * * * that her health has been greatly and permanently impaired ■ and her body greatly and permanently injured.”

Upon the trial evidence was received pertaining to several distinct items of claimed results from these injuries, which was objected to by the defendant’s counsel on the ground that they were not within the averments of the complaint. The plaintiff was a married woman twenty-six years of age and in vigorous health at the time of the infliction of the injuries, and the mother of two children and pregnant when injured. Proof was admitted on her behalf to show that as a result of the injuries she became barren. Again, that her womb was displaced and lacerated; that there was a disturbance of the nerve center at the base of the brain, which regulates or affects the distribution of the blood; that her sight was affected; that her nervous system was impaired by the severity of the shock and. that she suffered from inability to sleep. Proof was given connecting in some degree these various' injuries with the accident, and their severity and permanency were also proven.

The claim now is that none of these injuries are within the scope of the complaint. In Kleiner v. Third Ave. R. R. Co. (162 N. Y. 193) the complaint alleged : “ Whereby the plaintiff received severe and painful contusions to her head and body and arms, and lacerated her scalp and whereby she sustained severe nervous shock and concussion of the brain and injured her eyesight, and she' was for a time rendered unconscious, and she thereby sustained permanent injuries and was injured for life, all to her damage.”' On the trial the plaintiff was allowed to show that her heart was' affected ; that the dorsal muscle on the right side was paralyzed, and that she had trouble with her menstruation, suffered from vertigo, and had a curvature of the spine.” The court adopted the rule (p. 200) that When a plaintiff alleges that his person has been injured, and proves the allegation, the law implies damages, and he may recover such as necessarily and irmnediately flow from, the injury * * * .he must allege the special damages which he seeks to recover.” And again, “ Special damages which are the natural but not necessary result of the injury complained of, must be specifically alleged.”. The court later on in its opinion (at p. 201) discussed somewhat fully the admissibility of evidence, of this kind under a general allegation, saying: “ That she sustained a severe nervous shock was averred, so "that the precise question presented here is whether the allegation in the complaint that she sustained a severe nervous shock was sufficient to justify her in proving that the result of that shock was to produce heart disease, vertigo, curvature of the spine and the other diseases from which she was shown to have been suffering. While in this case it was unnecessary to allege specific damages in order to maintain the action, still, to recover damages that did not necessarily and immediately flow from the injury, they should have been alleged. The. proof in this case does not show that the diseases mentioned necessarily and immediately flowed from a severe nervous shock. The obvious reason for the rule, requiring special allegations of special damages, is to apprise a defendant of any injury claimed to have been sustained which did not necessarily arise from the accident, so as to enable the party to prepare to properly litigate the question upon the trial, or to at least ascertain the facts as far as possible.”

In Geoghegan v. Third Ave.. R. R. Co. (51 App. Div. 369) the substance of the allegations in the complaint are given as follows: “ the plaintiff had sustained severe wounds and bruises to his head, right hip, left arm, back and other parts of his body; that his spine had been injured, and that his brain had been injured, and that-he had been informed and believed that thereby he had sustained other severe internal injuries.”

The plaintiff was permitted, under objection, to show an injury to her eye. A new trial was granted for this error, the court following the-case cited. The court, in its opinion (at p. 371), uses this language: “ It is clear that these injuries to the eye which were claimed to be established by the evidence in this case were not the necessary result of any of the injuries described in the complaint. Certainly, the head could be injured without the eye being affected, and the brain might be injured without the eyes being implicated; and these are the only allegations to which this injury to the eye could be referred. Under the rule suggested it was necessary, if the plaintiff sought to recover for these special and not inevitable results of the injury, to allege them as special damages. This rule of pleading gives a clear and unmistakable guide to the court in the admission of proofs and to the defendant in his preparation for trial. Injuries which inevitably result from those described in the complaint, and which the defendant must know from the.allegations of the complaint had been suffered, may be recovered for under the general allegations. But where the injury is of a character which does not necessarily result from tl^at described in the complaint, then the defendant has no reason to expect proof of any such unsuspected injury upon the trial.”

In Ackman, v. Third Ave. R. R. Co. (52 App. Div. 483), under similar general allegations, the plaintiff was allowed to prove that lie was suffering from hystero epilepsy, and the reception of the evidence washeld reversible error as it did not appear'that the condition resulted “immediately and necessarily ” from the injury received.

In the present case the injured condition of the womb was not discovered until long after the accident, and the inability to procreate and the injury to the eye did not appear to be the “immediáte and necessary ” results of the injuries alleged.' All the conditions hereinbefore mentioned ‘may have been their natural results, but there is nothing in the allegations of the complaint to enable the defendant to apprehend that any such additions were to be made to injuries confessedly very severe and lasting.

There is certainly as much reason for adhering rigidly to this rule in a case of the assessment of damages after an affirmance where a stipulation has been given that judgment absolute is to follow the affirmance as upon an ordinary trial. The stipulation is given iipon the assumption that damages will be confined fairly within the compass of the complaint. If the injuries alleged are to be augmented by others of a grave character, the existence' of which, the defendant can have no intimation of from the pleading, there would be no safety in appealing from the decision of the Appellate Division reversing a nonsuit of the direction of a verdict for the defendant.

. At the conclusion of his main charge, upon the request of the defendant, the trial court instructed the jury that no recovery could be had by reason of the sterility of the plaintiff or the injury to the eye. We fear this caution on the part of the court may not have destroyed the effect produced by the introduction of the testimony which was given at considerable length on the trial, and was the subject of comment and discussion over its reception, and the- attention of the jury was thus pointedly directed to it. The plaintiff was very seriously injured. Her face was badly disfigured and scarred, and its appearance would necessarily arouse the sympathy of the jurors for her unfortunate condition. When these manifest injuries were supplemented by proof of others fully.as serious which were not visible,'we cannot say that the latter did not enter to a considerable extent into the assessment made by the jury, and on that account we are constrained to order a reassessment.

Ordinarily w,e are disposed to accord to the plaintiff in an action of this kind an option to accept a reduction of the verdict to a fixed sum. The alleged injuries in this case, however, are principally upon the face of the plaintiff and observablé to the jury. They are of a serious character. The forbidden elements which may have been considered by the jury Upon the present assessment are important. Upon the whole, therefore, we deem it just to both parties to direct another assessment unhampered by any privilege to the plaintiff to accept a lower sum than that, evidenced by the verdict of the jury. i

The order should be set aside and a motion for reassessment of damages granted, with ten dollars costs and the disbursements of this appeal to the appellant, to be deducted from any recovery had.

All concurred.

Order vacated and motion for reassessment of damages granted, with ten dollars costs and disbursements of this appeal to be deducted from any recovery had in the action.  