
    Otto Niendorff, Resp't, v. Manhattan Railway Company, App'lt.
    
      (Supreme Court, Appellate Divison, First Department,
    
    
      Filed April 17, 1896.)
    
    1. Evidence—Opinion.
    Where the expert’s opinion is strictly limited to deductions from physical condition which he had personally observed and which, as a witness, he had fully described, it is not necessary to group the facts thus narrated in the form of a hypothesis.
    2. Trial—Motion to strike out.
    Though a witness has so modided his testimony on cross-examination as to render it of little value, a motion to strike such testimony out will not be granted.
    3. Same.
    In such ease, the utmost that the party is entitled to, even though the cross-examination entirely destroys the direct testimony, is an instruction! to disregard the latter. „
    
      4. Same.
    It is discretionary with the court to permit a witness for plaintiff to be re-examined after defendant has rested, especially where the court expressly limits the examination to rebutting the direct testimony.
    6. Damages—Loss or time.
    Where the plaintiff has proved the loss of time, even though he has not actually shown the loss in money while he was laid up, he is at least entitled to nominal damages.
    Appeal from a judgment for plaintiff, and from an order denying a motion for a new trial.
    Julien T. Davies and Joseph H. Adams, for app’lt; Clarence Lexow and George M. Mackellar, for resp’t.
   BARRETT, J.

The plaintiff was a waiter in a Franklin street restaurant. On the 12th of September, 1891, after an unusually protracted service, he started to go home., This was about half past two o’clock in the morning. He thereupon took one of the defendant’s trains at the Canal street and Bowery station, intend-' ing to get off at Thirty-Fourth street. But he fell asleep while the train was proceeding uptown, and only awoke when it reached the Ninety-Ninth street station, where he got off. Thereupon he purchased his ticket for a fresh passage downtown, and dropped his ticket into the proper box. A point is made that the plaintiff, upon cross-examination, stated that he threw this ticket at the box, and that it may have fallen upon the floor of the platform. This point, however, is of but little moment, as it is clear that tne defendant’s agents were aware of the purchase, and actually received the ticket for cancellation. There is, in fact, but little doubt that the ticket was placed in the box in the usual way. A. misunderstanding upon the subject arose between the plaintiff and the defendant’s gateman. The gateman required the plaintiff repurchase another ticket, and the plaintiff insisted that he had already purchased one, and that the gateman would find it in the box, if he looked there. Upon the arrival of a downtown train an altercation ensued between them. The plaintiff started to get on the train, and the gateman sought to prevent his doing so. At this point the gateman resorted to violence; seizing the plaintiff by the collar and throwing him backward. The plaintiff again and again protested that he had paid his fare, and told the gate-man that, if he still doubted him, it would be better to get a police officer. The gateman replied that he was the officer, and’ followed this remark up with a violent attack. He struck the plaintiff in the face, and kicked him. He tried to throw him from the platform, down upon the railroad tracks. The plaintiff defended himself as best he could, but without much success, for he was severely injured before the gateman was finally dragged away by another of the defendant’s employes. It is not necessary to detail the plaintiff’s injuries. The severest injury undoubtedly resulted from kicks in the" abdomen and groin. The groin at once commenced to swell. This swelling increased day by day, notwithstanding local treatment. A few days later the plaintiff went to a hospital, where he was put to bed and treated. Bui the treatment was inadequate to relieve the increasing symptoms, and finally he was compelled to undergo a painful surgical operation. lie remained under treatment at the hospital for six weeks suffering more or less pain all the time. The jury awarded the plaintiff $5,000. We have examined the case carefully,'and, upon the whole, we can see no reason for disturbing the verdict. There was a conflict of testimony with regard to the altercation, but we cannot say that the-verdict was against the weight of evidence. The plaintiff’s story seems more natural and credible than that of the defendant’s witnesses. It is fairly corroborated, too. The story told by the gateman is overdrawn. He was, on his own showing, altogether too civil, too gentle, too entirely on the defensive. And the plaintiff is pictured as too coarse, too brutal, too-wantonly aggressive. His story was improbable, too. He says there was, in the end, no question about the plaintiff’s fare, that he knew it had been paid, and that the real trouble was with two other passengers. Thus, he would have us believe that there was no attempt to prevent the plaintiff from getting on the train, and that the altercation was initiated by the plaintiff’s carelessness, and wholly wanton attacks upon him. We think that the weight of credible testimony was with the plaintiff, as to the occurrence. As to the damages, while they were certainly liberal, we cannot say that they were excessive. The injury was severe, the operation painful, and the suffering great. Whatever the doctors may think about it, the fact remains that the plaintiff’s suffering has, in a degree, continued, and is likely to continue; that there is a «car upon his groin ; and that he is not the same man, physically, that he was before the injury. We need not detail the testimony on this head. Suffice it to say that it fairly supports the verdict. The amount is not so large as to warrant the conclusion that the ]ury were influenced by partiality or prejudice, or by any other improper motive. Considering the plaintiff’s condition in life, and the nature of the injury, we might have been better-satisfied with a somewhat smaller award; but onr discretion does not supplant that of the jury, and we cannot say that the verdict was excessive, within the settled rule upon that head. We will now consider the various exceptions taken by the appellant;

1. The testimony of the plaintiff’s expert was objected to because it was not given in response to a hypothetical question. This expert, however, was the very physician who performed the operation in the hospital. He distinctly stated that his expert testimony was based upon the'facts which, as a physician, he had previously narrated to the jury. “ I am speaking now,” he said, H of the condition which I have already described to the jury Question. And that exactly? Answer. “Yes, sir.” It was unnecessary to repeat the physician’s testimony in the form of an hypothesis. One of the purposes of a hypothetical question is to ¡prevent the expert from giving his opinion upon facts known to himself, or mentally assumed by him, but not communicated to the jury. Here the expert’s opinion was given upon the exact physical condition which lie had observed and described. He emphasized this observation and description throughout. Thus,, the jury heard every fact upon which the opinion was based.. The opinion was not based upon other testimony in the case, nor: upon hearsay, nor upon any foreign assumption. It was strictly] limited to deductions ‘from the physical condition which the expert had personally observed, and which, as a witness, he had fully described. Under these circumstances it was not necessary to group the facts thus narrated into the form o£ a synopsis. That; would have been an idle ceremony. It was clearly competent for the same person, as an expert, to give his opinion upon the facts which, as a physician, he had observed and narrated.

2. There was no error in refusing to strike out that part of the physician’s direct testimony where he stated that there may be future pain following the plaintiff’s condition. The contention is that the witness entirely receded from this position upon his cross-examination. Such, however, is not the fact. He, undoubtedly modified his views on that head, and it may be that, this modification rendered the direct testimony of but little value with respect to future pain. But that is no reason for striking it out. It was properly in the case, and it was for the jury to say, after hearing the cross-examination, what consideration, if any, it merited. The utmost that the defendant was entitled to, even if the cross-examination entirely destroyed the direct testimony, was an instruction to disregard the latter. Gawtry v. Doane, 51 N. Y. 84; Platner v. Platner, 78 id. 90; Pontius v. People, 82 id. 339. The defendant made no such request, and that which it did make was properly denied.

3. The defendant also objected to the court’s permitting the plaintiff to recall this physician as an expert after it had rested._ ‘This was a matter of discretion, and the discretion was not abused.] Indeed, the court expressly limited the plaintiff, in this examination, to rebutting the testimony of defendant’s expert. The plaintiff was not bound to forestall the defense. He proved the injury, and the grave symptoms which immediately and naturally, followed. The defendant then attempted to prove that these, symptoms resulted, not from the assault, but from an old malady. It then became entirely proper to permit the plaintiff to meet this) new aspect of the case, and to show that the old malady hadl nothing to do with the injury. We may add, upon full consideration of the careful analysis which the defendant presents of this expert’s testimony, that in our judgment the malady had nothing-whatever to do with the condition of the plaintiff’s groin, and that the operation already referred to was necessitated solely by the kick which he received in that part of his body from the defendant’s employe.

The remaining questions presented by the appellant are trivial,, and without merit. The learned judge stated the' general rulei upon the iubject of damages when he charged that they might take] into consideration the plaintiff’s loss of time, as well as his paini .and suffering. It is true that what the plaintiff actually lost in, money while he was laid up was not proved. But having proved the loss of time, he was at least entitled to nominal damages. Leeds v. Gaslight Co., 90 N. Y. 26; Feeney v. Railroad Co., 116 id. 375 ; 26 St. Rep. 729; Baker v. Railroad Co., 118 N. Y. 533; 29 St. Rep. 936. The defendant did not request the court to charge that the award on this head should be limited to nominal -damages. They confined themselves to a general exception to his fair statement of the ordinary rule, and we have no reason to believe, from aught appearing on the record, that the damages for loss of time exceeded the nominal sum which the jury were authorized to award. The criticisms upon the statement of the trial judge that the jury could not give the plaintiff more than $10,000, because that was the limit of his claim, is hypercritical. There was not the slightest intimation that they should give the plaintiff $10,000, or any other sum. There was no suggestion, even, of an opinion upon the subject. In fact, the observation' was in the defendant’s interest, and was called for by a request “ not to deal with the case as if it were their own, nor to give the plaintiff such sum as they would like to have themselves under the same circumstances.” To this the court replied: “ That is the fact. You to give him what he ought to have.” The plaintiff’s counsel then asked the court to charge that, if they found for the plaintiff, they were entitled to find for any sum up to $10,000, the amount claimed. And the court said, “You cannot give more than $10,000, because that is the limit of the plaintiff’s claim.” The present criticism upon this statement is evidently an afterthought. It did not, at the trial, affect the defendant’s counsel as being specially momentous; for the only observation which then followed the statement was that, as the pleadings were not in evidence, the counsel excepted to its being stated. The idea that twelve ordinary citizens were influenced by such a remark is farfetched. The jury are not such hothouse plants as unsuccessful appellants would have us believe.

There are no other questions calling for special consideration, and the judgment and order denying a motion for a new trial should be affirmed, with costs»

All concur.  