
    Delia M. Tait, as Administratrix, etc., of William Tait, Deceased, Appellant, v. Buffalo Railway Company, Respondent.
    
      Negligence—collision under a viaduct between a vehicle and a street car—proximate cause of death.
    
    What evidence of the circumstances attending a collision between a vehicle, driven from the side of a street under a viaduct beneath which street cars are operated, and a street car running from fifteen to twenty miles an hour, the motorman of which saw the vehicle when from fifty to seventy-five feet distant and did nothing towards stopping the car, presents a question for the jury as to the freedom from contributory negligence of the party injured and as to the negligence of the railroad company, considered.
    What evidence is sufficient to sustain a verdict that injuries received in such collision were the proximate cause of death, considered.
    Appeal by the plaintiff, Delia M. Tait, as administratrix, etc., of William Tait, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 1st day of. May, 1900, upon the verdict of a jury rendered by direction of the court, with notice of an intention to bring up for review upon such appeal an order bearing date the 29th day of January, 1900, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Eugene Z. Falk, for the appellant.
    
      Porter Norton, for the respondent.
   Laughlin, J.:

. Between the hours of seven and eight o’clock in the morning of the 16th day of May, 1899, plaintiff’s intestate, while riding'in a vehicle on Exchange street in the city of Buffalo, was thrown therefrom by a collision with one of defendant’s cars, thereby sustaining-injuries from which it is claimed he died on the sixteenth day of the following October. The action is brought to' recover the damages sustained by the widow and children. Decedent was familiar with the locality, and had taken his horse into a blacksmith shop to be shod and left his wagon under a viaduct which is constructed in the middle' of said street, leaving a passage for vehicles and a street car track upon either side. The street was practically level and paved from curb to curb, including the open space under the viaduct. After having the horse shod, decedent hitched up, took his place on the seat of the vehicle-and looked toward the east, that being the direction the wagon was facing, and started to turn to the north and west across the northerly street car track, evidently intending to drive westerly along the space between the street Car tracks and northerly curb of the street. The car that collided with the wagon came from the east upon this track. When decedent looked he could have seen the car if it had then been within one hundred and eighty feet, but the' car was not at that time in sight, on account of the fact that from the easterly end of the viaduct, which was more than two hundred feet distant, the street car track ran along the middle of the street. As decedent’s horse reached the track the car was from two hundred to two hundred and fifty feet to the east, and decedent had, as described by an eye-witness,' pretty well turned around toward the west before the car came in sight. Apparently, he did not discover its approach until it was' very near and he was upon the track. He then whipped up his horse, passing diagonally across the track toward-the northwest, and the motorman shouted Go ahead; go ahead.” The car struck the hind wheel, throwing-the wagon against one of the posts of the viaduct to the south. An eye-witness says that the car hit decedent twice or-three times, “bumped against him’’ and j’umped the track, throwing decedent off the seat and upon the pavement twenty or twenty-five feet over under the viaduct. The speed of the car was from fifteen to twenty miles an hour. At this point vehicles were liable to emerge, .as did decedent’s, from underneath the viaduct where it is claimed by defendant that in consequence of the lowness of the superstructure of the viaduct, the motorman could not, without stooping, see a vehicle coming from under the viaduct until the car came within from fifty to seventy feet thereof. According to. the evidence the motorman was looking toward the north to the side of the street while the car was traveling about two hundred feet, and until it came within sixty or seventy feet of decedent; and although the motorman saw the wagon when within from fifty to seventy feet thereof, he did nothing toward stopping the car or slackening its speed. The evidence would have justified a finding that had the motorman been exercising proper diligence he would have sooner discovered the wagon upon the track..

Upon these facts plaintiff’s freedom from contributory negligence and defendant’s negligence were questions for the jury. (Lawson v. Metropolitan St. R. Co., 40 App. Div. 307 ; Meyer v. Brooklyn, Q. C. c& S. R. R. Co., 47 id. 286; Kennedy v. Third Ave. R. R. Co., 31 id. 30; Schron v. Staten Island Elec. R. R. Co., 16 id. 111; Smith v. Metropolitan St. R. Co., 7 id. 253 ; Blate v. Third Ave. R. R. Co., 44 id. 163.)

The serious question in the case is as to whether the evidence was sufficient to sustain a verdict that the injuries received by this collision were the proximate cause of decedent’s death. The evidence bearing upon this point is too voluminous to be fully stated in an opinion. Suffice it to say that there was evidence, which, if believed by the jury, would have justified them in finding as follows: That decedent, who was thirty-two years of age, strong and well, and had previously always enjoyed good health, was by this accident thrown from the seat of his wagon a distance of twenty or twenty-five feet, landing on the pavement; that he lay there unconscious for a few minutes, then sat up with assistance, and within about ten minutes “ hopped ” unaided into the blacksmith shop, where he sat in a chair with his hands on his side until a buggy came in which he was taken home; that within an hour he complained to the attending physician of severe pain in the left side, and of pain in the left ankle, foot and toe, which were bruised and swollen; that he had a bruise on the left shoulder and in the region of the left temple, and a fracture of the sixth and seventh or seventh and eighth ribs, the parts in that region being bruised and the skin discolored, but not abrased to the extent of the size of a man’s hand, or three and a half inches wide and five or six inches long, and covering the lower portion of the heart; that the physician could “ discover the fracture there by the mobility of the ends of the bone, which was very painful above, the heart; ”. that decedent was coughing and spitting blood -with each expectoration, every two or three minutes; that two hours later he was suffering “ intense pain in both the ankle and the left side, the region of the ribs,” .and was still spitting blood; that at two p. m. the same day the pain had stopped to some extent but he was still spitting blood; that the spitting of blood was due to “ the injury to the lung;” that although the physician did not observe the expec^ toration of blood after the second day, decedent continued to spit blood more or less every day until he died, one witness describing the spitting of blood as “ continually from the time he was hurt, off and on along till he died ; ” and another who saw him daily after he was able .to be about, as. “ all the time from when he began to work again until the day he went home ” (two days before his death); that decedent was attended by a physician eight ór nine weeks and remained home nearly all that time, and the swelling continued in his foot; that he. remained in bed about two weeks and appeared to the physician to improve from the first; that the fractured bones were found united in about four weeks, when an adhesive strip which had been put on at-the first visit of the physician to keep the fractured bones in apposition, was removed,-but. the discoloration on the surface remained five or six weeks ; that about the sixth or seventh week decedent began to go out, under the advice of his physician, with the aid of a cane and crutch ; that, the ankle remained'swollen to some extent until death ; that after eight or-nine weeks he began to do light work, merely driving about and dealing in horses, but never thereafter did heavy work; that after thus, resuming light work he complained' to his physician on .several occasions of pain in his side and cough, saying .that- “ he suffered constantly from a cough,” and the physician prescribed for him twice during the month of August, about three weeks apart, the conditions-found on each occasion being the same; that On-said, occasions the physician found the left lung congested to some extent, but no tenderness there, and attributed the congestion to an ordinary cold, and could not say whether it subsequently disappeared or not, but he testified that, although he thought not, it might have been caused by the previous injury; that lay witnesses observed that on some occasions when decedent spit blood he would get dizzy and his head would balance like a man fainting away; that two days before his death he had a fainting spell and seemed very faint, could- hardly catch his breath; it seemed as though his lungs were filling up with something; ” that the day before his death lie went out at eleven o’clock, returned to the barn at three and to his home at six o’clock, and the former attending physician was. then summoned and found decedent apparently suffocating, scarcely able to breathe, coughing and spitting mucous mixed with blood, lips and face blue, both lungs congested, filled with mucous and blood, pulse about 150 and respiration about 50 and temperature about 102-j-degrees; that decedent then complained of intense pain across the region of the chest, severe headache and constant chills, and did not improve but grew worse, the spitting of blood continuing and the fever increasing and patient gradually growing weaker that night and next day until midnight, when he died; that the rules of the boai’d of health required that the certificate should give both the direct and contributing cause of death, but the attending physician who filled out and filed a certificate of decedent’s death stated acute pneumonia as the cause of death and gave no contributing cause, and upon the trial gave it as his opinion that it was double acute pneumonia, and that it was not due to the injury, but he further .testified that he believed that there was a contributing cause, but that he did not know what it was, and that all pneumonia is due either to a germ or an injury, and that he considered the injury received over the heart,” and that he thought the injury would have something to do. with the weakness of the heart, indicated by the lungs filling with blood, but he could not say whether or not the injury did have anything to do with it; that an autopsy conducted two days after death showed that the lungs were of a very dark color and charged with blood in every part; that all parts of the lungs would ’float in water; that but little fluid was found in the pleural cavities, about an ounce or two on each side; that when the pericardium was opened it was found to contain from ten to twelve ounces of fluid of darkish color and lymph, and the interior of this sac nearest the fractured ribs showed evidences of previous coagulation of blood' or a deposit of pigment from previous effusion of blood, and the surface of the pericardium was roughened, indicating previous inflammation of some standing, the most intense part being nearest the fractured ribs and its continuation over the heart was very well marked; that the heart was soft and it collapsed when cut ■open, and contained two clots of blood, one made in the throes of death arid the other resulted from coagulation of blood after death; that there was also evidence of in jury to the interior of the ribs and the internal surface of the pericardium with effusion of serum, the inflammation extending slightly into the structure of the heart; that both legs were dropsical around the ankles; that the watery elements of the blood oozed out, making the dropsical conditions, and the blood stagnated in the lungs and settled down in the posterior part and was more intense all over decedent’s back.

A medical expert of ability and standing, who performed the autopsy and was called as a witness in behalf of plaintiff, gave it as his opinion, in clear and positive language, that decedent’s death Avas caused by pericarditis^ that being the medical name of the inflammation of the pericardium, and that. such inflammation was caused by the injury to the ribs sustained at the time of the accident ; that the softening of the heart was caused by this inflammation, which extended into-the heart; that there was no valvular lesion of the heart and no heart disease, and, in his opinion, no other Avay to account for the condition of the heart and the pericardium; that the blue lips were symptoms of heart failure and not.of acute pneumonia in the first stages; that pneumonia is not congestion, but an inflammation of the lungs,.and that if this had been pneumonia, the parts of the lungs inserted in AVater Avould have sunk instead of floated, and that the existence of pneumonia was also disproved by the fact that- it does not affect the entire lungs, whereas, excepting as the blood had settled in the posterior part of the.lungs, the conditions found were the same all over, and that the dropsical condition and contents of the lungs were incident to and resulted from the injury to and inflammation in the péricardium and heart* which showed that toward the end of life the heart was too weak to pump the blood through the lungs and around the body. He further testified that, inasmuch as the inflammation to the pericardium might have resulted from other causes, the autopsy was thorough and complete to demonstrate that there was no other cause excepting the injury.

Three eminent experts were called by defendant, and in answer to hypothetical questions, and of course basing their opinions solely upon the facts recited in such questions, they stated that, in their opinion, double pneumonia, with acute pericarditis or pericardial complication, was the cause of death. They -also gave it as their opinion that the pneumonia was caused by a germ, and that the same germ or the pneumonia poison caused the pericarditis. They conceded that the injury might have caused the pericarditis, but were of opinion that, while chronic pericarditis would hasten death, it would not cause the acute congestion of-' the lungs, and they disagreed with the opinions advanced by the expert called by the plaintiff in other respects. The value of the expert testimony depended entirely upon whether the hypothetical questions embodied all the material facts relating to the history of the case and revealed by the autopsy, which the jury would have been warranted in finding. (Brehm, v. Great Western R. Co., 34 Barb. 256; Feeney v. L. I. R. R. Co., 116 N. Y. 375 ; Klein v. Second Ave. R. R. Co., 54 N. Y. Super. Ct. 164; Gay v. Union Mutual Life Ins. Co., 9 Blatchf. 142, 154; Cornish v. Farm Buildings Fire Ins. Co., 74 N. Y. 295; Getchell v. Hill, 21 Minn. 464, 471; Clark v. State, 12 Ohio, 483; Watson v. Anderson, 13 Ala. 202.) It is contended with much force and reason that the hypothetical questions upon which the experts called by defendant gave their opinion as to the cause of death, did not contain a fair presentation of the case, and conveyed the impression that decedent recovered from the injury, and omitted to recite that he constantly complained of pain in his side, in the vicinity of his heart, and that he coughed and spit blood daily from the time of the accident until his death, and they erroneously recite that he complained to his physician in August of having a cold, and omit the fainting spell which he had a few days prior to his death, and the weak and dizzy condition he was in on occasions when coughing and spitting blood as described by the lay witnesses, and also some of the evidence of the old internal injury and of the effect thereof as shown by the autopsy. ■

This was not a case where the testimony of experts was controlling upon the judgment of the jurors. As has been seen, the testimony of the experts was diametrically opposed, and it was, therefore, for the jury to say which opinion seemed best supported by reason and the probabilities of the case. The facts.upon which the opinions were given are such as every juror is more or less familiar with. The jurors could summon to their aid, in determining what was probable • and true from these conflicting opinions of experts, their own general knowledge and observation. The testimony giving the history of the case and the conditions disclosed by the autopsy related to facts which' became established if the jury deemed the witnesses credible, and their credibility if attacked was for the jury. This evidence was entitled to great weight in determining the cause of death. (Record v. Village of Saratoga Springs, 46 Hun, 448; 120 N. Y. 646 ; Geiler v. Manhattan R. Co., 11 Misc. Rep. 417.)

The nature and character of the evidence relating to the history of the case and the autopsy was such that when supplemented and supported by the unequivocal opinion of a qualified, reputable medi,ca! expert, to the effect that decedent’s death resulted from pericarditis, which was caused by the injuries sustained in consequence of the accident, and that what is designated as acute pneumonia by defendant’s experts was merely congestion incident to the pericarditis, it became a question of fact for the jury to decide whether the injuries received were the proximate cause of decedent’s death (Turner v. Nassau Elec. R. R. Co., 41 App. Div. 213; Hurley v. New York & Brooklyn Brewing Co., 13 id. 167, 171; Purcell v. Lauer, 14 id. 33; Lyons v. Second Ave. R. R. Co., 89 Hun, 374; affd., 152 N. Y. 654; Weber v. Third Ave. R. R. Co., 12 App. Div. 512; Beauchamp v. Saginaw Mining Co., 50 Mich. 163, 172-174.)

In the Hurley Casé (supra) the rule as to the proximate cause of death is well stated by Justice Bradley as follows: It is not sufficient that the plaintiff’s intestate may not have died when she did die if the injury had not been received by her. Bor is it necessary to the proximate cause of the act which produced the injury that different physical conditions followed, resulting in death, if there was-an unbroken connection between it and them-. In other words, if there was no intervening efficient independent cause to which the death may have been attributed the effect of death was proximate to the violence as the cause.”

If the jury had rendered a verdict in favor of plaintiff, we are of opinion that the evidence was sufficient to sustain it, and it was, therefore, error for the court to direct a verdict in favor of defendant.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Judgment and order reversed and-new trial ordered, with costs to the appellant to abide event.  