
    Johnson v. Manhattan Ry. Co.
    
      (Supreme Court, General Term, First Department.
    
    March 29, 1889.)
    1. Negligence—Dangerous Premises—Evidence—Similar Accidents.
    In an action against a railroad company for injuries caused by falling over the railing of the stairs of one of defendant’.s stations, it is error to admit evidence of similar accidents occurring after the one in question.
    
    2. Damages—Speculative Damages—Expert Evidence.
    In an action for personal injuries it is improper to allow a medical expert to be asked his opinion as to the permanency or likelihood of permanency of the injury; whether the injury would, in the ordinary course of nature, produce a certain disease, or diminish the chances of life.
    
    3. Same—Measure op Damages—Earnings.
    In ascertaining the amount of damages for personal injuries it is error to admit evidence of the aggregate amount of plaintiff’s earnings during a given time before the accident, where such earnings result in part from the use of plaintiff’s capital.
    Appeal from circuit court, Hew York county.
    Action by David M. Johnson against the Manhattan Bail way Company, for personal injuries. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      E. i$. liapallo, for appellant. A. G. Vanderpoel, for respondent.
    
      
       Concerning the admissibility, in actions for personal accidental injuries, of evidence of other similar accidents occurring about the same time and place, see Moore v. City of Richmond, (Va.) 8 S. E. Rep. 387, and note; Masters v. City of Troy, 3 N. Y. Supp. 450, and note.
    
    
      
       As to the competency of expert testimony in regard to the probable result of per- ■ sonal injuries, see Peterson v. Railway Co., (Minn.) 39 N. W. Rep. 485, and note; Campbell v. Railroad Co., 3 N. Y. Supp. 694; Silberstein v. Railroad Co., ante, 843.
    
   Van Brunt, P. J.

This action was brought to recover damages alleged to have been received by the plaintiff in falling over the railing of the stairs of > one of the stations upon the defendant’s road. It is not necessary to state the facts established by the evidence in order to determine the questions arising upon this appeal. It is sufficient to say that the action was founded upon the negligence of the defendant, and it was sought to establish such negligence by proof of the method in which the rail over which the plaintiff fell was constructed, and that other accidents had happened because of such faulty construction. In order that the plaintiff should succeed in this case it was of course necessary to prove that the defendant had been guilty of negligence in respect to its platform and the approaches thereto. It was bound to use that ordinary care and diligence which a person of ordinary prudence would exercise in reference to such structures, considering the uses to which they were to be put. It was not bound to anticipate every danger, neither was it bound to provide for the unexpected. As long as the structure was reasonably suited to the purpose to which it was to be applied, and their attention had not been called to any deficiency resulting from experience, the defendant was not guilty of negligence. In order to show that this rail was insecure to the defendant’s knowledge, and that therefore it was guilty of negligence, the plaintiff offered evidence of other accidents of a similar character, which it was claimed had happened. In reference to some of these accidents the witness was unable to determine whether they happened before or after the accident to the plaintiff. A motion was made to strike out some of this testimony, which motion was denied. This was clearly error. Such testimony could be competent only for the purpose of showing that by experience the defendant had learned that the structure was insufficient, and still maintained it in that defective condition. The fact that accidents had happened after the one from which the plaintiff suffered in no way tended to establish any such proposition, and it was for the plaintiff to show, when he proved the happening of an accident, that it occurred prior to the time of that which injured the plaintiff, and not to leave that matter simply to conjecture.

It would seem, also, that the learned court erred in admitting evidence as to various physical injuries which the plaintiff would be likely to undergo. A physician was examined as an expert, and questions of this character were put to him: “What is your opinion as an expert as to the permanency or likelihood of permanency of that injury? Would a fall such as I have described be likely to produce such a result to the brain, in your opinion, in the ordinary course of nature, as would produce that dizziness or that vertigo or pain when there was any heat?” The witness was also asked to give an opinion as to the effect in the ordinary course of nature as to increasing or diminishing the chances of life,—the probability of life. And to this question he answered that it might not interfere, and might not cause death, but the chances are that it would have a tendency that way, etc. This class of interrogatories, in the case of Strohm v. Railway Co., 96 N. Y. 305, has been expressly condemned by the court of last resort. It was there held that consequences which are contingent, speculative, or merely possible are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely so to develop. To entitle a plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of this occurring as amounts to a reasonable certainty that they will result from the original injury. The questions to which attention has been called are clearly within the prohibition here expressed, and were no more direct and certain than those criticised in the case cited, and because of which the judgment in that case was reversed.

There is also another error which seems to have been committed in the consideration of the measure of damages in the case at bar. The learned judge admitted evidence of the aggregate amount of the plaintiff’s earnings during the year or two prior to the accident. This was undoubtedly upon the strength of the decision of the court of appeals in the case of Ehrgott v. Mayor, 96 N. Y. 265, in which a ruling admitting evidence of previous earnings was sustained. That case, however, is clearly distinguishable from the one at bar. In the case at bar it appears that the earnings of the plaintiff were the result, of the use of his capital, and did not depend entirely upon his personal skill and services. In the Case of Ehrgott the admission of the evidence was justified upon the ground that the plaintiff’s income was not from capital invested, but solely from his personal skill and services, and therefore it formed an exception to the rule that previous profits in business are not admissible in evidence in cases of this description because of their speculative character; and the EhrgoÚ Case was expressly distinguished from the ease of Masterton v. Village of Mt. Vernon, 58 N. Y. 391, because of this feature, which appeared in the ease last cited. In no case has it been permitted, where the profits of business arise from the investment of capital, that evidence of such profits should be offered for the purpose of enhancing the damages. It is only in cases where the earnings proceed entirely from the plaintiff’s labor that the evidence becomes admissible. For these errors in the admission of evidence a reversal of the judgment becomes necessary. The judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the event. All concur.  