
    JOHN M. JORDAN, Respondent, v. HENRY C. BOWEN, Appellant.
    
      Evidence—exhibition of wounded limb in action for personal injuries.— Judge's charge—exception to.
    
    In an action for injuries to the person, caused by the negligence of defendant, it is not error to allow the plaintiff to exhibit to the jury the injured limb; e. g., an arm which has been crushed by machinery.
    Where such an action has been brought by a minor who becomes of age before the trial, a general exception to the proposition in the judge’s charge, that the plaintiff, if entitled to recover, is entitled to compensation for the time during which he had been unable to labor, presents no ground for reversal.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    
      Decided, November 22, 1880.
    Appeal by the defendant from a judgment in favor of plaintiff, entered upon a verdict for $3,000, and from an order denying a motion for a new trial on the judge’s minutes.
    The action was brought to recover for personal injuries suffered by the plaintiff while in defendant’s employment, from the machinery of a printing press while in motion.
    Among many exceptions taken upon the trial by the defendant was one to the ruling of the judge permitting the plaintiff to exhibit to the jury his right arm, which was greatly mutilated and injured ; there was also an exception to the judge’s charge in regard to damages, which is fully stated in the opinion.
    
      Nash & Holt, attorneys, and George C. Holt, of counsel, for appellant, among other things, urged:
    The court erred in the charge as to damages.
    
      The court charged that if the plaintiff should recover, he would be entitled to compensation, among other things, “for the time he has been deprived of the ability to labor.” To this defendant’s counsel duly excepted. It appeared in the case that the plaintiff, at the time of the accident, was sixteen years of age; that the plaintiff’ s father is still living, and has brought an action, which is still pending, against defendant, for the loss of his son’s wages because of this accident: The father of a minor son is prima facie entitled to his earnings during minority. The father may relinquish this right, but such relinquishment must be proved (Shute v. Dorr, 5 Wend. 204; 1 Pars. Cont. 309). In this case, not only was there no proof of such waiver, but it actually appears that the father is suing to recover for the loss of these wages. To permit their recovery in this action, therefore, was error. The recovery in this action will be no bar to the pending suit by the father.
    II. The court erred in permitting the plaintiff to show his arm to the jury. As this exhibit is not before the court on this appeal, the appellant has a right to ask the court, in passing on this point, to assume that the appearance of the plaintiff’s mutilated arm was extraordinarily revolting, and calculated to cause extreme commiseration for plaintiff to be felt by the jury.
    The exhibition of this mutilated arm was not only .calculated to unduly excite the pity of the jury, and was a kind of evidence from which the jury might draw entirely erroneous conclusions, but it was a kind of testimony differing from ordinary exhibits, in that it was optional with plaintiff whether to have it introduced or not. The defendant could not have obliged the plaintiff, on the stand, against his will, to make such an exhibition of his person as was made before the jury. The court can, undoubtedly, in a proper case, involving a question of personal injury, compel a party to submit out of court to a surgical examination as a basis for surgical testimony on the trial; but surely no witness could be compelled in open court unwillingly to exhibit any part of his or her person not customarily exposed. If so, where will the right stop ? No testimony should be admissible which is not admissible on the demand of either party. To permit a party to introduce evidence, if it helps him, which, at the same time, he can keep out if it-hurts him, is clear injustice.'
    
      David E. Gwynne, attorney, and Richard O' Gorman, of counsel, for respondent, among other things, urged:
    I. The plaintiff had a right to claim for loss of time before and after the trial, he was of age before the trial; the defendant’s counsel did not discriminate in his objection to this.
    II. The court exercised its discretion properly in refusing and allowing introduction of evidence. The jury were not misled. The defendant’s counsel improperly objected to the plaintiff showing to the jury the condition of his arm. In an action to recover damages for an injury to the limb, the injured limb may be exhibited on trial, to be inspected by the court and jury (Wharton Ev. § 346; Mulhado v. Railroad Co., 39 N. Y. 370; State v. Garnett, 71 N. C. 85 ; Wiener v. State, 66 Mo. 13; Walsh v. Sayre, 52 How. Pr. 334).
   By the Court.—Freedman, J.

Upon the question of defendant’s negligence, as well as upon the question of plaintiff’s alleged contributory negligence, the evidence was sufficient to carry the case to the jury, and hence defendant’s motions for a dismissal of the complaint and for the direction of a verdict were properly denied. Nor can I discover any valid objection to the charge under which the whole case was submitted to the jury, or any merit in any of the exceptions taken by the defendant to the refusals to charge otherwise.

Upon the question of damages, the defendant might have asked to have the jury instructed that the father of the plain JS was entitled to the earnings of the plaintiff during his minority, and that, consequently, they had no right to include in their estimation any damage sustained by the = plaintiff in this respect during his minority. If such a request had been duly made and refused, an exception taken to such refusal might be pressed as a ground for a new trial. But, as no such request was made, nor the attention of the trial judge called to the point, and as the plaintiff had become of gge before the trial, a mere general exception to the proposition charged, that the plaintiff, if entitled to recover, was entitled to compensation, among other things, for the time he had been deprived of the ability to labor, presents no ground for reversal.

The exceptions to the admission of testimony and the denial of the motion for a new trial appear to be equally untenable.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., concurred.  