
    Cornelius Hayes, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (City Court of New York, General Term,
    December, 1896.)
    1. Evidence — Hypothetical question.
    A hypothetical question which 'assumes facts as to which there is no evidence' is improper and cannot furnish the basis of an opinion by an expert. ■
    2. Negligence — Permanent injuries — Charge.
    Where there is no proof whatever of any permanent injury it is error to submit the quéstion to the jury.
    Appeal from a judgment entered on a. verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    Henry L. Scheuerman, for appellant.
    James Cowden Meyers, for respondent.
   O’Dwyer, J.

The action was brought to recover damages for alleged injuries, alleged to have been sustained by reason of the negligence of the agents; servants and employees of the defendant.

The answer is a general denial and contains the affirmative allegations ‘ that the'injuries claimed to have been sustained were caused solely or in part by the plaintiff’s own carelessness, negligence or improper conduct, or by the carelessness, negligence or improper conduct of some third person or persons over whom the defendant exercised no control.

Evidence of an accident resulting in injuries to the plaintiff was introduced, and upon all the evidence the case became one' for the jury to determine whether the defendant was guilty of negligence and the plaintiff free from contributory' negligence, and their verdict is decisive and the judgment must be affirmed unless some error was committed by the learned judge at the trial of the action.

During the direct-examination of Dr. Cherry, who had treated the plaintiff and last examined him in October, 1894, he was asked:

“ Q. Assuming that the testimony is that the plaintiff had suffered and continued to suffer, during. bad weather, shooting pains and soreness.in the hip, is that a■ probable result of the injury as you saw it? [Objected to as incompetent; that it assumes a portion of the testimony of the witness, that is all, and it is all before the jury and is irrelevant, immaterial and a conclusion. Objection overruled. Defendant excepts.] A. It is.”

The question is hypothetical. It assumes the truth of those claims of suffering upon which the plaintiff relies as part of his damage.

How, there is no evidence to support these assumptions.

Plaintiff’s testimony as to the continuance of the pains is as follows:

“ I suffer pain in my head; it is a stinging pain when the atmosphere is heavy; it always pains me when I was going up stairs; if I live high in the house I have to hold my head when I go upstairs. Q. Has this pain continued since the 6th day 'of September, 1894? A. Yes, sir.”

This is all the evidence there is of continuing pain or trouble during bad weather. All this relates to the head, which was not injured by the accident. Consequently, there is no proof of continuing hip soreness, no proof of shooting pains.

This hypothetical question, therefore, rests upon mere assumption. It served to convey to the jury that there were hip pains in addition to head pains and shooting pains in addition to stinging pains, and that they were the probable result of the accident, whereas, actually, there was nothing in the evidence to show the existence of either continuing hip pains or shooting pains.

The law is well settled that the opinion of an expert can be given only in reply to a hypothetical question based upon the facts proven and fairly within the scope of the evidence.

At the conclusion of the trial the defendant requested the. court to charge “that there is no proof in this case of any permanent injury.”

“ The Court.— I decline to charge that. There is some evidence and it is for the jury to judge about that. [Defendant excepts to a refusal so to charge.] ,

“ The Court.— There is no positive evidence of a permanent injury. I charge that, but it is for you to judge. [Defendant excepts.] ”

There is some evidence that the subjective pains had continued up to the day of the trial, but there is not a word to indicate that they would be permanent of Would probably be permanent — that is, would last while the man lived.

The court’s ruling was error. There is no proof whatever" of any permanent injury and it was, therefore, clearly wrong to leave the question to the jury for them to judge.

The other errors assigned are not passed upon for the reason that they might not occur on a new trial.

The judgment and order appealed from should, therefore, be reversed, and a new trial' granted, with costs to the appellant to abide the event.

Conlan, J., concurs.

Judgment and order reversed and new trial granted, with costs to appellant to abide event. ;  