
    Catherine Kelly, as Administratrix, etc., of John Kelly, Deceased, Respondent, v. Charles T. Wills, Appellant.
    Second Department,
    January 18, 1907.
    Negligence — death by fall of scaffold—■ evidence sufficient to warrant a finding that death was Caused hy the accident.
    When it is a question as to whether the death of the plaintiff’s intestate resulted from an injury caused by the negligence of the defendant, the jury are not required to determine the definite cause of death with scientific certainty.. They are not required to base the verdict on medical testimony, and are at liberty to disregard the opinions of experts called by either side,
    When it is shown that the decedent, a man of good health, at work upon a scaf-’ fold which gave way, -fell fifteen or twenty feet, and that building stones and mortar tubs fell on him;1 that his leg and -ankle were broken; that he was badly bruised, especially his left side and shoulder, and. suffered from shock; that he .was taken to a hospital, where he died suddenly about twenty-six days thereafter, and the physician in. charge testifies that, in his opinion; the death was caused by embolism of the heart, and that the injuries were an adequate cause thereof, a verdict finding that the death was caused by the injury is 'warranted by the evidence, although other experts testify that the cause of death could not be ascertained with scientific certainty without an autopsy.
    When a witness has testified that the deceased died of embolism, subsequent hypothetical questions may be asked based upon that assumption.
    Appeal by the defendant, Charles T. Wills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of April, .1906, upon the verdict of a jury for $17,500, and also from an order entered in said clerk’s office on the 19th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert Thorne [Frank V. Johnson with him on the brief], for the appellant.
    
      Arthur J. Burns, for the'respondent.
   Jenks, J.:

The action is for negligence by the administrator of a servant against the master, and the master appeals from a judgment on the verdict. The appellant contends that there is neither proof of his negligence nor of the absence of the intestate’s contributory negligence. The servant, standing upon a scaffold at work on'a building, fell to the ground and was injured when the scaffold gave way. I think that there was sufficient evidence of the defendant’s negligence to sustain the verdict. We so held in Stach v. Wills (115 App. Div. 911), an action arising out of the same accident, and the testimony is much the same as in that case. The question of contributory negligence was for the jury.

The appellant also contends that there is total failure of proof that the accident was the.proximate cause of death, and hence the question arises whether the evidence is sufficient to justify the finding of the jury to that effect. The accident occurred on March 21, 1904. The intestate fell 15 or 20 feet, and there is evidence that building stones and mortar tubs'fell in upon him. He was taken to a hospital at once, and examination showed that his left leg was broken in two places, his right ankle -was partially fractured and dislocated, and he was bruised about the body, especially on. the- left side thereof. He remained in the hospital until April 16, 1904, when he suddenly died. There was much expert medical testimony. The criticism of the appellant is that the case- presents a double uncertainty, a gtiesS upon a guess, first, as to whether .; the death was due to the embolism, and, second, whether the injuries caused the embolism. Hr. Ilasbrouck had charge of the case in the course of his regular attendance at the hospital,, beginning about April 1st. He testifies to the injuries which I have described that the patient.suffered from shock and pain and that the bruises ' were severe in character. He testifies : “ I know what he died of, embolism, that is a fibrinous concretion or a blood clot that might get plugged in the valve of the heart or" anywhere in .the-circula-" tian.” This witness'is criticised for two reasons. - It is said, first,. that he is impeached by his own. previous statements and by "his qualifications of liis. testimony ;-and, second, by the testimony of other physicians. It appears that the witness made the statement.' of the caiise of death in the hospital records and in the death certifi- . cote that the probable cause of death was heart failure, * ■ * * , Cardiac Polypus,” meaning thereby, he says, that there was a growth in the interior of the heart which reached the ¡valve of the heart. It also appears that there was no autopsy or examination of the heart made after death, and thp witness- testifies that he thinks there should. have been to determine, what the cause of death -was, and that ■ if such examination had taken place it might have been found that the original judgment of the cause of - death ivas correct. The other physicians called testify, with one exception, as,to the necessity of. an autopsy. Hr. O’Hanlon, for the defendant, a physician of great experience in ascertaining the cause of death, who had made 5,000. autopsies, in ansiyer to á hypothetical question, said that in his opinion the cause of death could'not be told,. but that it y was a mere matter Of conjecture without an autopsy. Hr. Benedict, for the defendant, answered that upon the hospital record and the hypothesis he did not know the cause of death, and that in the ■ absence of an autopsy it was not possible to assign the cause.of , death with reasonable certainty. ' Hr. Banning, for'the defendant, in answer to a hypothetical question,' said that there could not be a . causal connection and testified that to ascertain “ the exact cause of this heart difficulty causing death an autopsy was necessary.” ■ ,Dr. Schmidt, for the defendant, testified that without an autopsy it was “ impossible to determine that question or matter with any reasonable certainty.” Dr. Denniston, for the plaintiff, the first physician in actual attendance on the patient from his entry into the hospital until April 1st, testified that “ an autopsy would have to have been held to determine exactly what the situation was.” Dr. Fleming, for the plaintiff, does not agree that an autopsy was necessary to determine “ the real and correct cause of death.” Dr. Foy testified that if there had been án autopsy conducted “you might have ascertained exactly and definitely the cause of death.” If it ivas the duty of the jury to determine the exact and definite cause of death with the scientific certainty of a physician, and if the jury were to decide that question solely upon , the medical testimany, it is quite true that the question was in much doubt. But the question of cause was for the jury, who were neither required to find that cause beyond a reasonable doubt, nor to find the specific affliction of the heart with the certainty of medical determination, who were not bound to base their verdict upon the medical testimony, and who were at liberty to 'disregard the opinions of the experts called by either side. (Lawson Expert Ev. [2d ,ed.] 177, and cases cited. See, too, Roberts v. N. Y. E. R. R. Co., 128 N. Y. 455.) What, then, was the evidence before the jury ? There was evidence that the decedent, a man of 52 years, was a workingman, well and in good health; that he 'fell 15 or 20 feet to the ground, and that stone and mortar tubs fell in on him ; that his left leg was broken above the knee; that his left ankle was broken; that his right ankle was partially fractured or dislocated and broken; that he was badly bruised, especially his left side and shoulder; that he suffered from much shock and much pain, which pain continued as long as he was under his first physician, until April 1st, and he suffered from shock and pain in the judgment of the succeeding physician in charge; that such physician could not find any other cause of death save the injuries; that in his final opinion the cause of death was embolism of the heart, a fibrinous concretion or a.blood clot that plugged up the valve in the heart; that in his opinion the injuries were an adequate cause; that when the patient entered the hospital his heart was examined, and then there was no trouble with it; that embolism, which is a thickening of the fibre of the blood, could arise anywhere in the circulation and could be carried to the ■ heart; that it could be. caused by the lying quiet in bed for o ór 6' weeks, and that another cause is the weakened condition of the blood vessels produced by strain, and that there were'embolisms-caused by fractures, a blood clot forms and gets into -the circulation; that in the case of an artery that has been injured, in healing a blood clot forms and that blood clot after a little becomes dislodged and gets in the circulation and plugs it, that is an embolism; that while there could be a growth-of the heart which would be fatal (cardiac polypus), the original examining physician would have discovered it, and that he did not find it. And then the jury had also the evidence of several physicians that the injury was an adequate causé. Upon this evidence, and in the absence of proof of any intervening efficient cause, I think that there was sufficient evidence to sustain the’ verdict, Which was that the injury was the cause of the death. The j ury may have rejected the testimony of the defendant’s experts, or they may have concluded that it was very true from their testimony and that of the other physicians that an autopsy was the only certain method' of determining the exact cause of death; but they were not bound to be certain or to establish a certain medical opinion of the exact cause of the death. ." ■ '

In Seifter v. Brooklyn Heights R. R. Co. (169 N. Y. 254), cited by the leái-ned counsel for the appellant, the decision turned; upon a septic condition at the point of fracture, and,'therefore, it. was necessary for the plaintiff to offer evidence to establish infection at the point of fracture, whereas the salé physician who treated Seifter and who alone had made an examination after the cast was removed, testified that there was no evidence of degeneration or of septic condition (p. 260). This was the crucial point, and the plaintiff failed in it. But in this case there was the testimony'of the expert that death was,due to embolism of the heart,, that the ..embolism might be caused by a weakened condition of the blood vessels produced by strain, or by a person lying quiet in bed for 5 or 6 weeks, and also that there are embolisms caused by fractures-, so that á blood clot forms and gets in the circulation— when an .artery has been injured the clot forms in the healing, is dislodged and gets into the circulation, and when -the heart is affected death follows at once. In other words, the expert evidence is that as the result of such an accident as was 'testified to in this case an embolism could have existed.

It is true, of course, as suggested by the learned counsel for the appellant, that the questions put to the experts outside of the .physician who attended the patient assumed that the patient died of embolis'm; hut these questions were to elicit the opinion whether the injury was the proximate cause, and the assumption was justified in view of the testimony of Dr. Hasbrouek. There is no merit in the criticism that the court permitted the question to Dr. Hasbrouek which assumed that he found embolism, for the reason that the witness testified that he knew the patient died of embolism. The only objection was that the question was “ incompetent ” without comment or explanation.

T advise that the judgment be affirmed, with costs.

Present-—■ Hibschberg, P. J., Woodward, Jenks, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  