
    Katie V. Hoey, as Administratrix, etc., of James J. Hoey, Deceased, Appellant, v. Metropolitan Street Railway Company and The Dry Dock, East Broadway and Battery Railroad Company, Respondents.
    
      Power of the court where specific questions are answered and a general verdict is rendered by the jury—wlien acute pulmonary tuberculosis will not be presumed to have resulted from the weakness caused by muscular atrophy, induced by an accident.
    
    Where the judge presiding at a jury trial submits to the jury, under section 1187 of the Code of Civil Procedure, certain, specific questions of fact with instructions to render a general verdict also, he has no power, after the jury have answered the specific questions of fact and rendered a general verdict, to dismiss the complaint upon the merits nor to set aside the answers, except Oné, made by the jury to the specific questions of fact submitted to them, or the géneral verdict. In such a case he may either nonsuit the plaintiff or direct the jury to render a general verdict.
    In an action to recover damages resulting from the death of the plaintiff’s intestate, in which it appears that the intestate sustained very serious injuries, in consequence of the defendant’s negligence, and that a short time thereafter he developed progressive muscular atrophy, but that the immediate cause of his death was acute pulmonary tuberculosis, a germ disease, in no way connected with the accident, nor shown to have resulted from the progressive muscular atrophy, a finding that the acute pulmonary tuberculosis resulted from the accident will not be sustained, upon the theory, unsupported by any evidence, that the intestate was so weakened by his injuries and the progressive muscular atrophy resulting therefrom, that it made him susceptible to tuberculosis, and that by reason thereof he contracted the latter disease. O’Brien and Laughlin, JJ., dissented.
    Appeal by the plaintiff, Katie Y. Hoey, as administratrix, etc., of James J. Hoey, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of October, 1901, upon the decision of the court, rendered after a trial at the New York Trial Term, dismissing the complaint upon the merits and setting aside the general verdict and the special findings of fact brought in by the jury, except the first finding, with notice of an intention to bring up for review upon said appeal the order dismissing the complaint and directing the entry of the judgment.
    
      William Rumsey, for the appellant.
    
      Charles F. Brown, for the respondents.
   McLaughlin, J.:

On the 11th of December, 1899, James J. Hoey, the plaintiff’s intestate, while a passenger in one of the defendants’ cars, was seriously injured by the car in which he was riding colliding with another car belonging to the defendants. He died on the 30th of September, 1900, and this action was brought to recover damages for his death, on the ground that the negligence of the defendants was the cause of it.

At the trial the defendants’ negligence and the intestate’s freedom from negligence were conceded, and the sole question litigated was whether the injuries sustained by the intestate at the time of the collision were the proximate cause of his death.

At the close of the case, defendants’ counsel .moved for the dismissal of the complaint, or for the direction of a verdict, and pending the consideration of such motion, the trial court submitted to the jury, under section 1187 of the Code of Civil Procedure, certain. specific questions of fact, with instructions to also render a general verdict. One of the specific questions of fact was : “ Did James J. Hoey die September 30, 1900, from hasty consumption ? ” This was answered in the affirmative and a general verdict rendered, awarding plaintiff, as damages, $12,500. The jury was discharged and the trial court, after consideration, directed that a judgment be entered dismissing the complaint upon the merits, setting aside the general verdict and the answers to all of the questions except the one above given. To this ruling the plaintiff excepted. Judgment was entered accordingly, from which this appeal is taken.

-The court had no power to dismiss the complaint upon the merits, nor to set aside the answers of the jury to the specific questions of fact submitted to or the verdict rendered by them. It will be observed that the section of the Code referred to provides that after the jury shall have rendered a special verdict upon such submission, or shall have' assessed the damages, the court may then pass upon the motion to nonsuit, or direct a general verdict, and on appeal from the judgment entered upon such nonsuit or general verdict, such special verdict or general verdict shall form a part of the record and the Appellate Division may direct such judgment thereon as either party may be entitled to; The trial court, therefore, could, after the rendition of the special verdict by the jury, have adopted either one of two courses; he could nonsuit the plaintiff or direct the jiiry to render a general verdict. He did not direct a general verdict, nor did he nonsuit the plaintiff, but instead directed judgment dismissing the complaint upon the merits. This was clearly erroneous, but in view of the conclusion at which we have arrived, inasmuch as the special verdict is in fact set out in the record, it is of no importance, since this court has power to direct such judgment as either party may be entitled to. The judgment should have been one nonsuiting the. plaintiff, instead of dismissing, the complaint on the merits. This brings us to the consideration of the main question presented, and that is, whether the injuries which the plaintiff’s intestate sustained in the collision were the proximate cause of his death. If they were not, then the plaintiff was not entitled to recover. The uncontradicted evidence adduced upon the trial was to the effect that a few weeks prior to his death he was stricken with acute pulmonary tuberculosis, which disease the jury found caused his death. Any other finding would have been clearly against evidence. Was the disease then, from which the intestate died, the direct result of the injuries ■ which he sustained in the collision; in other words, -was defendant’s negligence the proximate cause? A proximate cause, as defined by the Court of Appeals in Laidlaw v. Sage (158 N. Y. 73, 99), “ is one in which is involved the idea of necessity.. It is one the connection between which and the effect is plain and intelligible ; it is one which can be used as a term by which a proposition can be demonstrated, that is, one which can be reasoned from conclusively. A remote cause is one which is inconclusive in reasoning, because from it no certain conclusion can be legitimately drawn; in other words, a remote cause is a cause the connection between which and the effect is uncertain, vague or indeterminate. * * * The proximate cause being given, the effect must follow. But although the existence of the remote cause is necessary for the existence of the effect (for unless there has been a remote cause there can be no effect)"still, the existence of the remote cause does not necessarily imply the existence of the effect. The remote cause being given, the effect may or may not follow.’ ” A proximate cause as thus defined was quoted with approval in a recent case by the same court. (Seifter v. Brooklyn Heights R. R. Co., 169 N. Y. 254.)

There is no doubt that the deceased sustained very serious injuries in the collision, and by reason thereof, within a short time thereafter, developed what is termed in the record as “ progressive muscular atrophy,” but there is nothing in the evidence which would justify a finding that the tuberculosis which resulted in his death was caused by, or necessarily flowed from, that disease. On the contrary, the evidence is uncontradicted that tuberculosis is a germ disease and that in order to contract it in the lungs the germ must be inhaled, and that these germs were not the result of or produced by the accident that they came from a source independent of, and not connected with, it. What is claimed is that the intestate’s condition was so weakened by his injuries, and the disease resulting from them, that is, progressive muscular atrophy, that it made him susceptible to tuberculosis and by reason thereof he contracted it. There is nothing in the evidence to sustain this claim, and such conclusion is based upon conjecture and speculation alone. To entitle the plaintiff to recover she was bound to prove that the death of her intestate was the direct result of his injuries; that his injuries were the cause and his death the effect, an unbroken chain extending from the cause to the effect ( Weber v. Third Ave. R. R. Co., 12 App. Div. 512), and any link in that chain could not be supplied by a mere possibility. (Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469.) If it could, then it is- not difficult to see how easy it would be to take property from one person and give it to another, sanctioned by judicial procedure. The negligence of the defendants may have been the cause of the intestate’s death, but whether it was or' was not is a pure guess and nothing more, and a judgment in law cannot stand upon a guess or bare possibility.

Our conclusion, therefore, is that the judgment should be corrected as indicated in this opinion, and as thus corrected affirmed, without costs to either party.

Van Brunt, P. J., and Patterson, J., concurred; O’Brien and Laughlin, JJ., dissented.

Judgment corrected as indicated in opinion, and as thus corrected affirmed, without costs to either party.  