
    Stephen A. West, Resp’t, v. The Manhattan Railway Company, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed June 20, 1888.)
    
    1. Negligence—Measure of damages—Judge’s charge.
    In an action for damages for personal injuries which plaintiff alleged he had sustained through the negligence of defendant, the court charged the jury "that as to the amount of damages you must confine yourself wholly to what would he a compensation for the damages he actually received, and that it has been proven to you he did receive, and which are the proximate and natural result of the injury he received. He was subjected to intense agony. He remained in bed for some weeks. * * * He claims that he is still under the necessity of using medicines and taking remedies. There is no doubt that this plaintiff has suffered pain; there is no doubt that the injury inflicted was, at the time it was inflicted painful and somewhat severe, and further that he will be subject to this injury for the future, is matter of necessary inference from his present suffering and con dition * * * .” Held, that under the charge the jury was not at liberty to give anything for the cost of medicines theretofore taken. They
    
      were confined to compensation for the- consequences of the injury as described by the judge. The jury could have found something for the plaintiff's being obliged to take opium, chloroform and quinine, as they are uncomfortable nauseous and destructive of appetite.
    .3. Same—Request to charge—When ambiguious—What exception not AVAILABLE.
    The defendant’s counsel asked the court to charge “ that the jury cannot upon the testimony in the case, allow damages for medicines, lotions or medical material.” Held, that the request, if charged would have been ambiguious. That a party should not have a right to avail himself of an exception to a ruling upon a matter unnecessarily introduced by himself, only for the sake of the exception.
    3. Same—Evidence of exclamations—How far admissible.
    Exclamations by the plaintiff made after the accident as follows: "‘Take these splinters out of my leg; take these splinters out,” are admissible in evidence.
    Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.
    This action was brought to recover damages for personal injuries which plaintiff alleged he had sustained through the negligence of the defendant.
    
      Edward S. Rappallo & Henrg D. Sedgwick, Jr., for app’lt; Alfred Taylor, for resp’t.
   Sedgwick, Ch. J.—

The appellants insist, that the jury could not upon the testimony in the case allow any damages for medicine, lotions, or medical material on the ground "that the value of such medicine, lotions, and medical material had not been proved.

The court said on the subject of damages, “The next question is as to the amount of damages * * * and you must confine yourself wholly * * * to what would be a compensation for the damages that he has actually received, and that it has been proven to you he did receive and which are the proximate and natural result of the injury he received. He was subjected to intense agony. He remained in bed for some weeks. * * * He claims * * * that he is still under the necessity of using medicine and taking remedies. There is no doubt that this plaintiff has suffered pain. There is no doubt that the injury inflicted was at the time it was inflicted painful and somewhat severe, and further that he will be subject to this injury for the future is a matter of necessary inference from his present sufferings and condition. * * * ”

It will be seen that under the charge the jury was not at liberty to give any thing for the cost of medicines theretofore taken. They were confined to compensation for the consequences of the injury as described by the judge.

The reference to the medicines did not embrace the idea that the medicines he might be obliged to take in the future were to be valued by the injury. It was made as relevent to his present condition as caused by the injury. This is ■emphasized by the charge. ■

“ The plaintiff is liable to his own physician in the sum of $500 * * * if you find for the plaintiff, he would be entitled to that as part of his damage.”

This was legally the same kind of damage as would, have been the cost of medicine, if the cost had been proved.

The judge says nothing which allows the jury to give a. vérdict for the cost of medicines.

The defendant’s counsel then asked the court to charge, “That the jury cannot upon the testimony in the case allow any damages for medicines, lotions, or medical material.”

The refusal of the judge left the case as it was, with instructions that did not allow the jury to give anything for the cost of medicines, lotions, or medical material.

I do not think a party should have a right to avail himself of an exception to a ruling upon a matter unnecssarily introduced by himself only for the sake of the-exception.

The defendant could not have been aggrieved by the-judges not saying anything to the jury on the subject, after his charge. The refusal to charge was not a matter for the jury, and could not therefore for any reason lead the jury to suppose that the plaintiff could recover the cost of' medicines.

It is also to be noticed that the court refused to charge the matter of a request ambiguous in form and meaning.

The request was not that there could be no recovery for the cost of medicine, nor was it that the jury could not allow for the using of medicines.

The jury could have found something for the plaintiff’s, being obliged to take opium, chloroform, and quinine. They are uncomfortable, nauseous, destructive of appetite. They cause a man to live in an atmosphere of a druggist’s, shop. The jury could compensate for that. The request if charged would have been ambiguous.

In this connection it is also to be noticed that in another portion of the charge the court warned the jury to be-careful how they applied the evidence to the question of damages.

The appellant also alleges that the court erred in refusing to charge as follows: “That prior to the adoption of the Code of Procedure in this state, or prior to the present, constitution of this state, the plaintiff being a party was. not a competent witness in his own behalf, and that it is under that constitution ne is enabled to be a witness, and the question as to his credibility is entirely one for the jury; and that they; have a right in considering the case to wholly reject his evidence.”

In answer to your request the court said: “I charge you without any reference to the constitution, that the plaintiff’s testimony, as that of every other witness, is to be considered by you and believed or disbelieved according as your good sense and judgment govern you.”

The defendant excepted to the refusal to charge as requested, and, also to the charge as given.

I think the judge was correct in his charge as to the credibility of an interested party, and that his charge covered the substance of the request on this point. No exception was taken to the words, “As that of every other witness,” nor was the attention of the court particularly called to that phrase by the general exception of the defendant.

On the trial it was shown that immediately after the accident the plaintiff said: “ Take these splinters out of my leg; take these splinters out.” The defendant moved to strike out this evidence as immaterial and incompetent.

This motion was denied and the defendant excepted.

I am of the opinion that the words uttered by the plaintiff were admissible ■ under the rule that allows exclamations.

A strict grammatical standard should not be used. The jury might find the words were exclamatory in reality.

There were as matter of fact no splinters in his leg. The words were not received as evidence of their being splinters. The jury might find that pain forced out the words.

I don’t think the judgment should be reversed for this.

The judgment and order appealed from are affirmed, with costs.

Truax and Dugro, JJ., concur.  