
    Henry Schwanzer, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence—error in allowing the jury to consider an injury, not proved.—proof that the plaintiff'was committed, to the almshouse is incompetent.
    
    In an action to recover damages for personal injury, proof that the plaintiff oefore the accident was, apparently, in good health and that after it he was suffering from a hernia, where neither the plaintiff nor any one else testifies that the hernia did not exist before the accident, does' not authorize the court in speaking of the matter to say, “I will not withdraw it entirely. I will leave it fo.r the jury to consider in the light of all the evidence.”
    In such an action testimony that.the plaintiff had been committed to the alms- ■ house is incompetent.
    
      ■ Appeal by the defendant,. The Brooklyn Heights Railroad Company from a judgment of the"Supreme Court in favor of the plain- , tiff, entered in .the office of the clerk of the. county of Kings on the 10th day of- October, 1896, upon the verdict of a jury,' and also from an order entered-in said clerk’s office on the 27th day of October, 1896, denying the. defendant’s motion for a new trial made ■upon the minutes.
    
      Thomas 8. Moore, for the appellant. '
    
      Albert A. Wray, for the Respondent.
   Willard Bartlett, J. :

In this action-'.the plaintiff has recovered a verdict of $1,000 damages -for personal injuries', suffered in consequence of being knocked-■down by one of the. defendant’s trolley' cars, on Harrison avenue;- in the city of Brooklyn. We are compelled to reverse -the judgment entered upon this verdict,, and order a new trial ’ by reason of an error committed by the trial -judge in his instructions to the- jury in regard to- -the elements which they could -consider in assessing the plaintiff’s damages. . • ■ . -

A physician, who made a physical examination of the plaintiff -on the day before the trial, testified -that he found him suffering from a hérnia-or rupture on the left side of the body. There was absolutely no evidence in the case from' which it could be inferred that this rupture was caused by .the accident winch befell the plaintiff when he-was knocked down by-the'defendant’s car'. The plaintiff did not testify himself, and there was no testimony from any other’ person showing that the hernia did not exist prior to the accident.

.-Upon this state- of proof, the learned trial judge evidently entertained considerable cloub.t whether he ought to leave any question ' -concerning the hernia to the jury. ■. In the bourse' of his charge, however, he referred' to it in such a way as to convey the idea that ■its noinexistence before the accident might be inferred from the testimony to the effect that the plaintiff was then apparently in good health. At the close of the charge he was asked by counsel for the defendant whether he had withdrawn from the consideration of the jury the question of rupture or hernia, to which- he responded.: “ I think that is out of the case practically.” If. the matter had- rested here there would have been no reversible error ; but subsequently, after some remarks by the counsel for the' plaintiff, the learned court, although again declaring that there was- not any proof of the absence of hernia before the accident, said': “ I will not withdraw it entirely. I will leave it for the jury to consider in the light of all the evidence.”

The defendant’s exception to this statement was well taken. All questions concerning the hernia, as an element of damage, should have been withdrawn from the consideration of the jury by the trial judge.-. In view of what was said on the subject, it can hardly be doubted that the jury did consider it,-and that the recovery in behalf of the plaintiff was thereby increased. ;

' An error was also committed in the course of the trial in admitting testimony against the objection of the defendant, to the effect that the plaintiff had been committed to . the almshouse. We cannot perceive any juirpose for which this evidence was introduced except to'show that the plaintiff was a poor man, and thus excite sympathy in his behalf and enhance the amount of damages which, should be awarded by' the jury. Evidence of this kind is not admissible. The amount of damages recoverable in a negligence suit cannot properly be affected by the poverty of the plaintiff.. (Shea v. Potrero, etc., R. R. Co., 44 Cal. 414; Mannion v. Hagan, 9 App. Div. 98.) As it turned out that the plaintiff remained in the almshouse only one. day, it may be that the error in receiving this testimony could be disregarded as harmless; but we think best to call attention to it, so that a similar mistake may not be made when the case comes to be tried again.

The judgment must be reversed and a new. trial granted, costs to abide the event.

All concurred..

Judgment and order reversed and new trial granted, costs to abide the event. ' '  