
    Charles B. Gumb, Resp’t, v. The Twenty-third Street Railway Company, Appl’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    1. Negligence—Injuries to person—When damages implied by law —Special damages.
    Where a plaintiff alleges that his person has been injured and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury, under a geneial allegation that damages were sustained; but, if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury, he must allege the special damages which he seeks to recover.
    2. Same—Injury to wagon—Repairs when allowed.
    In an action wherein the plaintiff alleged that his person and the wagon in which he was driving was injured by the negligence of the defendant, he was permitted to testify that he had paid a certain sum for the reparation of his wagon. Held, that in the absence of evidence that the repairs were proper or worth the sum paid, it was error to hold that the sum paid could be recovered.
    8. Same—Evidence op physician’s charges—When admissible.
    Evidence of how much his physican charged him, without giving evidence of payment or any evidence of the value of the services, should not have been admitted.
    4. Same—When evidence op driver’s fatigue inadmissible.
    Evidence tending to show that the accident was occasioned by the fatigue or sleepiness of the driver of defendant’s car, inasmuch as no such ground for the action is contained in the complaint, was inadmissible. Bradley, J., dissenting.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment entered on a verdict for $500 damages.
    
      Charles M. Hough, for pl’ff resp’t; Welt on Percy, for deft app’lt.
    
      
       Reversing 1 N. Y. State Rep., 715.
    
   Follett, Ch. J.

—At the intersection of Sixth avenue and Twenty-third street, the tracks of the defendant and of the Sixth avenue railroad cross each other nearly at right angles. On February 12, 1883, a Sixth avenue car was moving north on the east track of that line, closely followed (from Carmine street to Twenty-third street) by a butcher’s wagon, with its wheels on the rails, drawn by one horse, driven by the plaintiff, who owned horse and wagon. This car stopped to receive and discharge passengers at the north cross-walk of Twenty-third street. The plaintiff stopped his horse immediately behind the car. As this occurred, one of defendant’s cars approached from the west, on the north track of its line, collided with the hind wheels of plaintiff’s wagon, overturned, broke it, and, as it is asserted, injured the plaintiff’s left leg. The plaintiff testified that the head of his horse was close to the rear end of the Sixth avenue car, with the hind wheels of his wagon standing midway be"tween the rails of the north track of defendant’s line, and that defendant’s car was driven against the hind end of his wagon. Foley, plaintiff’s witness, testified, that the rims of the hind wheels stood over the north rail of the north track. Edwards, defendant’s driver, testified, that the hind wheels stood far enough north of the north rail to have permitted the car to pass without touching; but that as the car was passing, the plaintiff’s wagon was backed in the way of the car.. This, and the rate of speed of the defendant’s car, were the principal facts in dispute.

The plaintiff testified that he saw the defendant’s car approaching rapidly; but he did not explain why he made no attempt to turn to the right or left of the Sixth avenue car, and leave the track. There is no evidence that anything prevented him from doing so.

The plaintiff was permitted to testify, over defendant’s objection, that the evidence was not within the issue, that, while suffering from his injury, he employed two men to work in his place, paying them twelve and fifteen dollars per week each, one hundred and thirty-five dollars in the aggregate. When a plaintiff alleges that his person has been injured, and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury (which are called damages), under a general allegation that damages were sustained; but if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury (which are called special damages), he must allege the special damages which he seeks to recdver.

It is not alleged in the complaint that the plaintiff expended money in hiring others to work in his place; the defendant had no opportunity of contradicting the evidence, and its reception was error. Gilligan v. N. Y. and Harlem R. R. Co., 1 E. D Smith, 453; Stevens v. Rodger, 25 Hun, 54; Whitney v. Hitchcock, 4 Denio., 461; 2 Thompson on Negligence, 1250, §§ 32 and 33; 2 Sedg. on Dam. (7th ed.), 606; 1 Chitty’s Pldgs. (16 am. ed.), 411, 515; Mayne on Damages, chap. 17; Heard’s Civil Pldgs., 310 to 314.

The plaintiff was permitted to testify that he paid seventy dollars for the reparation of his wagon. The defendant objected to this evidence upon the ground that it did not establish the extent of the injury, or the value of the repairs. The objection was overruled and the defendant excepted. In the absence of evidence that the repairs were proper, or worth the sum paid, it was error to hold that the sum paid could be recovered.

This error was repeated. The plaintiff, under a like objection, was permitted to_ show_ how much his physician charged him, without giving evidence of payment or any evidence of the value of the services, except the incidental remark of the physician, who testified: “seventy-five dollars is the amount of my bill now, that is very small too.”

Upon the cross-examination the plaintiff was permitted to prove, over defendant’s objection, that the driver worked until midnight the day before the accident, and began work on the day of the accident at forty minutes past seven in the morning, and had but twenty minutes for dinner. No evidence had been given in chief, which made this competent in cross-examination. But it is now urged by the respondent that these were relevant facts, from which the jury might properly infer that the defendant overworked its driver and that his condition might have caused the accident. No such ground for the action is contained in the complaint; and, besides, we fail to discover any evidence or intimation that the accident was occasioned by the fatigue' or sleepiness of the driver, or any connection between this evidence and the facts in issue. The tendency of this evidence was to prejudice the jury against the defendant, for which purpose it' was undoubtedly introduced, as it formed no basis for any just inference. Its reception was error.

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

All concur, except Bradley, J., dissenting.  