
    David M. Johnson, Resp’t, v. Manhattan Railway Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 29, 1889.)
    
    1. Negligence— Railroad station—What care and diligence required.
    In an action to recover damages received by plaintiff in falling over the. railing of the stairs of one of the stations of defendant, Held, that the defendant was bound to use that ordinary care and diligence which a person of ordinary prudence would exercise in reference to such structures, considering the uses to which they were put. They were not bound to anticipate every danger, neither were they bound to provide for the unexpected. As long as the structure was reasonably suited to the purpose te which it was to be applied, and their attention had not been called to any deficiency resulting from experience, the defendants were not guilty of negligence.
    2. Same—Evidence—Subsequent accidents.
    The fact that accidents had happened after the one from which plaintiff suffered, in no way tended to establish that the structure was insufficient and defective; it was for the plaintiff to show, when he proved the happening of an accident, that it occurred prior to the timé of that from which he suffered.
    3. Same—Damabes for apprehended future consequences—When recovered.
    Consequences which are contingent, speculative or merely possible are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely so to develop. To entitle a plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of this occurring as amounts to a reasonable certainty that they will result from the original injury. Following Strohm v. N. T., L. É. and W. R. R. Go., 96 NT. Y., 305.
    4. Same—Evidence of profits of business when inadmissible.
    Where the profits of business arise from the investment of capital, evidence of such profits is inadmissible for the purpose of enhancing the damages. Distinguishing Ehrgott v. Mayor, 96 1ST. Y., 265.
    Appeal from judgment entered in favor of plaintiff upon verdict of a jury at circuit.
    
      E. S. Rapallo, for app’lt; A. G. Vanderpoel, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages alleged to have been received by the plaintiff in falling over the railing of the stairs of one of the stations upon the defendants’ road. It is not necessary to state the facts established by the evidence, in order to determine the questions arising upon this appeal. It is sufficient to say that the action was founded upon the negligence of the defendant, and it was sought to establish such negligence by proof of the method in which the rail over which the plaintiff fell was constructed, and that other accidents had happened because of such faulty construction. In order that the plaintiff should succeed in this case, it was of course necessary to prove that the defendants had been guilty of negligence in respect to their platform and the approaches thereto. They were bound to use that ordinary care and diligence which a person of ordinary prudence would exercise in reference to such structures, considering the uses to which they were to be put. They were not bound to anticipate every danger, neither were they bound to provide for the unexpected. As long as the structure was reasonably suited to the purpose to which it was to be applied, and their atj;bntioh;: had not 'been called to any deficiency resulting' from/experience,' the' defendants were not guilty of negligence.!'- .7 , .

. - I-n. order d©- show that this rail was insecure, to the defendants^11 knowledge, and that therefore they were guilty ¡bfhfejjllgéncb,/the" plaintiff offered evidence of other accidents of á similar character which it was claimed had happened. In reference to some of these accidents, the witness, was, unable to determine whether it harpened before dr'/aftbr 'the', abcident to the plaintiff. A motion was made to ¡strike out ¡some of this testimony, which motion was denied. ■ This-.was clearly error. Such testimony could be competent only for the purpose of showing that by experience the. defendants had learned that the structure was insufficient, and still maintained it in that defective condition: ■ ■ -The fact that accidents had happened after the one from, which the plaintiff suffered, in no way tended to establish : any :such proposition, and it was for the plaintiff to .show!,.¡widen, he proved the happening of an accident, that it occurred .prior, to the time of that which injured the plaintiff, and not to leave that matter simply to conjecture.

' It would-seem also that the learned court erred in admitting evidence as to various physical injuries which the plaintiff‘/ivótild’ be likely to undergo. A physician was examined as áti expert and questions of this character were put to him:!

“What is your opinion as an expert as to the perma•nency' or! likelihood -of permanency of that injury ?

“ Would a fall such as I have described be likely to pror duce "such "a result to the brain in your opinion in the ordinary course of nature, as would produce that dizziness or that) yqftigo'or "pain when there was any heat ?

¡'." The".witness .was also asked to give an opinion as to the . effect in the .ordinary course of nature as to increasing or .diminishihg-the chances of life and the probability of life.

. And;, to-.this .question, he answered that it might not interfere and. might not cause death, but the chances are that.it would have a tendency that way, etc.

This class of interrogatories in the case of Strohm v. N. Y., L. E. and W. R. R. Co. (96 N. Y., 305), has been expressly condemned by' the-court of last resort. It was there held that consequences which are contingent, speculative or merely possible, are not proper- to be considered in ascertaining the da'magbs. It is" not enough that the injuries received may develop into iiiófe serious conditions than those which are visiblb .at the time of the injury, nor even that they are likely so to develop. To entitle a plaintiff to recover present, damages for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.

The questions to which attention has been called are clearly within the prohibition here expressed, and were no more direct and certain than those criticised in: the case cited, and because of which the judgment in that case was reversed.

There is also another error which seems to have been committed in the consideration of the measure of damages in the case at bar. The learned judge admitted evidence of the aggregate amount of the plaintiff’s earnings during the year or two prior to the accident. This was undoubtedly upon the strength of the decision of the court of appeals in the case of Ehrgott v. Mayor (96 N. Y., 265), in which a ruling admitting evidence of previous earnings was sustained. That case, however, is clearly distinguishable from the one at bar.

In the case at bar it appears that the earnings of the plaintiff were the result of the use of his capital, and did not depend entirely upon his personal skill and services. In the Case of Ehrgott, the admission of the evidence was. justified upon the ground that the plaintiff’s income was not from capital invested, but solely from his personal skill and services, and therefore it found an exception to the rule that previous profits in business are not admissible in evidence in cases of this description because of their speculative character, and the Ehrgott Case was expressly distinguished from the case of Masterton v. Village of Mt. Vernon (58 N. Y., 391), because of this feature, which appeared in the case last cited. In no case has it been permitted, where the profits of business arise from the investment of capital, that evidence of such profits should be offered for the purpose of enhancing the damages. It is only in cases where the earnings proceed entirely from the plaintiff’s labor that the evidence becomes admissible.

For these errors in the admission of evidence a reversal of the judgment becomes necessary.

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

Brady and Daniels, JJ., concur.  