
    Minnie Koehne, Respondent, v. New York and Queens County Railway Company, Appellant.
    
      Negligence —injury to a railroad passenger—a high degree of care and shill must be exercised in the operation of the road—under what allegations evidence as to the probable future consequences of the injuries is admissible.
    
    A railroad company is required to exercise through its servants a very high degree of care and skill in the operation of its cars, in order that no injury may-result to its passengers.
    This rule has not been changed by the decision of the Court of Appeals in Stierle-. v. Union Bailway Go. (156 3ST. Y. 70).
    Evidence as to the probable future consequences of an injury is admissible und'er a complaint which alleges that, by reason of the negligence of the defendant, the plaintiff has sustained great bodily injuries both internal and external, causing severe shock and shattering her entire system; that the plaintiff still suffers greatly from said injuries, is,: and probably will be, incapacitated thereby from performing her usual labor, will suffer great pain and will be compelled in the future to incur great expense for medical treatment.
    In such a case the court considered that a verdict of 85,000 in her favor was not excessive.
    
      Semble, that the action of the court in striking out such evidence, after it has been improperly received, does not cure the error committed in the admission of the evidence.
    
      Appeal by the defendant, the New York and Queens County Kail way Company, '• from a ¡judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of January, 1898, upon the verdict of a jury for $5,000, rendered after a trial at the Queens County Trial Term, with notice of an intention to bring up for review, upon such appeal, an order entered in said clerk’s office nuno jpro tuno as of the. 11th day of January, 1898, denying the defendant’s motion for anew trial made upon the minutes.
    ■ The complaint contained, among other things, the following allegations:
    “ III. That by reason of the negligence of the defendant as aforesaid, the plaintiff has sustained great bodily in juries, both external and internal, causing severe shock and shattering her entire system and particularly fracturing her ankle and injuring her limbs, back, kidneys and other internal organs, besides cuts and bruises to different parts of the body.
    “ IV. That in consequence of said injuries- the plaintiff has been confined to her bed and suffers greatly in body and mind, and still suffers therefrom, and thereby is wholly incapacitated from performing her usual labor; and the reasonable probable future consequences of said injuries will be great pain and suffering, expense and incapacity for. labor.”
    “ VI. That plaintiff has been put to great expense for medical and other, services, and in future will be compelled to continue to incur expense for such services.
    “ VII. That by reason of the premises herein and the injuries so caused the plaintiff has been damaged in the sum of twenty-five thousand dollars ($25,000.00).”
    
      Eugene L. Bushe, for the ajipellant.
    
      B. P. Stratton, for the respondent.
   Willard Bartlett, J.:

'The accident in which the plaintiff was injured was a collision between two trolley cars of the defendant moving in opposite directions. The plaintiff was a passenger in an open car going from the Thirty-fourth Street Ferry, in Long Island City, to the Lutheran Cemetery on the right-hand track of the railroad line. At Laurel Hill the motorman, being informed that there was a derailed car ahead, switched his car' over to the left-hand track. This track was used by cars going toward the ferry, and under the circumstances he must have expected, in the exercise of a reasonable foresight, to meet one of these cars on its way down. He actually did meet such a car,' and by reason of his carelessness, or that of the motorman on the other car, or both combined, the collision occurred, which, as the jury have found, threw the plaintiff into the street and inflicted injuries for which they have awarded her the sum of $5,000.

The most important exception in the case relates to the instructions given by the learned trial judge to the jury in' respect to the degree of care which the defendant was bound to exercise under the circumstances. The jury were told that while the defendant did not insure the plaintiff against all hazards, incident to her transportation as a passenger, “ it was required to exercise, through its servants, a very high degree of skill, to see to it that no injury resulted.” At' the conclusion of the charge the counsel for the •defendant took an exception to the foregoing instruction, to the effect that the defendant must exercise a high degree of skill, whereupon the court remarked : “ Care, I meant. I meant care and skill in the operation of its cars.”' It is insisted in behalf of the appellant that the rule, as thus laid down, is in conflict with the recent decision of the Court of Appeals in Stierle v. Union Railway Co. (156 N. Y. 70). There is no doubt that the first opinion in that case did give rise to a very general impression in the legal profession that the rule imposing the highest degree of care upon common carriers for the protection of their passengers had been limited in its application so as to confine it to the maintenance of the roadbed, engines, cars and other appliances of a railway corporation, and that it was not to be applied to the conduct of the agents and servants of the corporation in the operation of the road. That this view of the decision was erroneous, however, has been made plain by the Court of Appeals itself in the opinion delivered upon the motion for a reargument. (50 N. E. Rep. 834.) In this opinion Judge - G-bay expressly declares that the court has not changed any rule of care applicable to carriers- of passengers, and affirms the correctness of the decisions in Maverick v. Eighth Ave. R. R. Co. (36 N. Y. 378) and Coddington v. Brooklyn Crosstown R. R. Co. (102 id. 66), in both of which cases it was held that the common carrier was bound to exercise the highest degree of care and prudence in the management of the vehicle in which it undertook to transport the injured passenger. In the case at bar the condition of things on the defendant’s road at the time and place of the accident certainly called for the exercise of a very high degree of care on the part of the motormen in charge of the respective cars, which were rapidly approaching one another upon the same track, to avoid a collision and cqnsequent injury to their passengers. The charge of the learned court correctly stated the obligation of the defendant in this respect under all the authorities.

In the recently decided, case of Piper v. N. Y. C. & H. R. R. R. Co. (156 N. Y. 224) the Court of Appeals says: “ Railroad companies are not insurers of the safety of travelers. When they have done all that human skill, prudence and foresight suggest, in the way of precautions and of a safe roadbed, of suitable passenger cars and of such proper mechanical appliances as are required in the operation of a train, they cannot be required to do more.” In this language the learned counsel for the appellant finds further confirmation of his idea that the rule of highest care is no longer to be applied to the operation of a railroad. But the passage quoted must be read in reference to the general subject-matter of the opinion, and so read it cannot be fairly understood as denying or in any' manner questioning the obligation of a railroad- company to exercise the utmost care and prudence to avoid in juring-its passengers by collisions between the cars or trains in which it is transporting them.

The only other point which requires discussion is the proposition that the damages were excessive. According to the evidence introduced in behalf of the plaintiff, she suffered a fracture of the kneecap, a fracture of one of the bones of the heel, and sustained a blow which produced a tumor in the abdominal region from- which a disease of the kidneys has developed. At the time of the trial, about six 'months after the accident, this tumor still existed, and medical testimony was given to the effect that it 'was reasonably certain to be permanent. ■ The court, however, after receiving considerable evidence as to the probable future consequences of the injury, struck it-all out, of its own motion, and instructed the jury that this proof had been taken away from their consideration because the permanency of the. injuries had not been pleaded, and that, therefore, it was not proper for ■ them to consider whether or not they would remain with the plaintiff through the rest of her life. If the learned court was right in holding that this evidence was improperly received, the error committed in its reception was not cured by striking it out and instructing the jury to disregard it. After hearing so much on the subject, the jury could hardly fail to be influenced by it, no matter how honestly they endeavored to throw it out of consideration. It seems to me, however, that this evidence was admissible under the complaint, and hence that defendant can-mot complain that the jury gave effect to it in assessing the plaintiff’s damages. In this view the verdict cannot be deemed so large as to justify any interference with it on our part.

The judgment and order appealed from should be affirmed.

Judgment and order unanimously affirmed, with costs.  