
    Rosa S. Klein, Respondent, v. John Burleson, Appellant.
    Fourth Department,
    May 4, 1910.
    Motor vehicles — negligence — collision with other vehicle — facts justiing recovery — evidence — collision with other persons — pleading — failure to allege freedom from contributory negligence — damages— proof of pain.
    Action to recover damages for injuries received by the plaintiff who was thrown from a wagon which, she alleged, was struck by the defendant’s automobile. Evidence examined, and held, that a verdict for the plaintiff based on a finding that the automobile struck and overturned the wagon was justified.
    The failure of the plaintiff to show that the vehicle in which she was riding was injured by the collision does not invalidate a finding that the automobile struck it.
    Where the .defendant, endeavoring to prove that there was no collision, gave evidence that no marks were found upon his automobile after the accident, the plaintiff is entitled to show that the defendant earlier in the same day collided with another vehicle as it tends to show the possibility of a collision without leaving visible evidence of the fact. But the evidence is competent for that purpose only, and cannot be received as proof of general recklessness.
    Where a complaint alleges that an injury was caused bjr the defendant’s negligence, it states a cause of action although there be no allegation that it was caused “solely” by the defendant’s negligence or that the plaintiff’s negligence did not contribute thereto. But the plaintiff must prove freedom from contributory negligence.
    Under a complaint alleging that the plaintiff’s ribs were broken and that she was bruised and wounded, it is not error to allow evidence that she suffered pain, although there be no direct allegation thereof, for pain is a necessary consequence of the injuries alleged.
    Spuing and Williams, JJ., dissented.-
    Appeal by the defendant, John Burleson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 8th day of May, 1909, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.
    
      M. B. Jewell, for the appellant.
    
      James A. Parsons and H. K. Brown, for the respondent.
   Robson, J.:

Plaintiff, about nine o’clock in the evening of' June 16, 1908, while driving with her husband on the highway from Stannard’s Corners to Wellsville, was thrown from their carriage and received the injuries for which she has recovered this verdict against defendant.

Appellant urges that the verdict is contrary to and against the weight of the evidence. Under her complaint, as the court charged the jury, she could not recover against defendant unless she .established that the vehicle in which she was riding was' tipped over and she was thrown therefrom solely by reason of an actual physical collision of defendant’s automobile therewith, due to defendant’s negligent management of his conveyance at the "time. Plaintiff’s proof satisfactorily establishes this fact. Both she and her husband testify that when they discovered defendant’s automobile approaching in front of them the horse with the buggy in which they were riding was turned to the right completely out of the beaten track of .the highway, and while it is true neither of them saw defendant’s machine actually collide with the buggy, yet they both say they saw it coming directly toward the buggy and felt the shock of the actual impact, and the buggy was pipped over. The horse was then rearing and plunging but it did not swerve, or attempt to turn around. The jury were well warranted in finding from this evidence that the automobile struck the buggy and tipped it over. Defendant denied that he collided with any vehicle, though he. admits he did drive his automobile; from Wellsville to Stannard’s Corners that evening at about the time plaintiff' was injured. He also says that he did not see any one, whom he met, having any trouble in controlling his horse, or team. Plaintiff gave no proof that the buggy was injured by the collision, and the absence of such proof is, as appellant insists, important, because, if there was a collision of force sufficient to tip the buggy over it would necessarily have broken that part of the buggy with which the automobile collided. It can hardly be held that this follows as a necessary inference of fact. Defendant also gave proof by himself and another witness, who examined his automobile the morning after the accident, that there were no marks thereon, nor were the lamps on the front of the machine broken or injured; from this we are asked to infer that it was not possible that any collision had occurred. Plaintiff produced testimony on her part that defendant had while driving his machine earlier the same day collided with another vehicle. This fact is not directly denied by defendant. If this be true, it would seem that it is possible for an automobile to collide with another vehicle without imprinting visible evidence of the fact on the machine itself.

There was much talk of counsel and various efforts on the part of plaintiff in an attempt to prove previous accidents occasioned by defendant while driving his machine; but none of this testimony seems to have been admitted, except that in relation to the single occasion above referred to. At the request of defendant the jury was charged that this testimony must be entirely disregarded upon the question of defendant’s negligence. ' The evidence was competent for the single purpose for which it was received. The jury were sufficiently cautioned and instructed to disregard all testimony of general recklessness of defendant in the management of his machine and the remarks of counsel in reference thereto. All of this had-previously been expressly stricken from the record by the' court’s order. If the somewhat heated discussion indulged in by counsel when this evidence was offered and its admissibility considered by the court may have been calculated to develop what has been described in Scott v. Barker (129 App. Div. 241, 247) as “an inflated and exaggerated tropical atmosphere,” the air was- ultimately cleared and nothing remained to obscure the perception or judgment of the jury after the court had excluded, as he did, from their consideration the attempts of plaintiff’s- counsel to introduce objectionable evidence and everything that had been said in that connection.

The denial of defendant’s motion to dismiss the complaint, made upon the ground that it does not state facts sufficient to constitute a cause of action in that it fails to allege that the injury complained of was caused solely by defendant’s negligence, or that plaintiff’s negligence was not a contributory cause thereof, is now urged upon our attention as error. The complaint alleges that the injury was caused by defendant’s negligence. A separate and direct averment of the absence of plaintiff’s contributory negligence is not required. As stated in Lee v. Troy Citizens' Gas Light Co. (98 N. Y. 115, 119), “ substantially that allegation is always involved in the averment that the injury set out was occasioned by the'defendant’s negligence. To prove that, it is necessary- for the plaintiff to show, and the burden- is upon him to establish, that his own negligence did not cause or contribute to-the injury.” (Bogardus v. Metropolitan Street R. Co., 62 App. Div. 376.)

The remaining ground upon which we are asked to reverse the judgment is-that plaintiff was permitted over defendant’s objection and exception to prove that she suffered pain by reason of her' injury.. There is.no direct allegation■ in the complaint that she suffered pain, or that she became by reason of her injury sick, sore, and disabled, but.she does allege that her ribs were broken and that she was “bruised and wounded.” I think 'tins was a sufficient allegation of her injury' to permit her to make proof of the pain directly ' caused, by the injury. “ 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 general damages) under a general allegation that damages were sustained.” (Gumb v. Twentythird Street R. Co., 114 N. Y. 411.) It would not seem to require argument that pain would result necessarily and immediately from having one’s ribs broken and one’s body otherwise grievously bruised and wounded; and pain is always considered a proper element to be considered in determining actual damages resulting from an injury.

The judgment and-order should be affirmed, with costs.

All concurred, except Spring, and Williams, JJ., who dissented Upon the ground of inflammatory and improper remarks made by counsel for plaintiff upon the trial.

Judgment and order affirmed, with costs.  