
    George B. McCready, Respondent, v. Staten Island Electric Railroad Company, Appellant.
    
      *Negligence — a $3,500 ves'dict for hernia and prniial pah'alysis is not excessive — allegations as to the injury—proof of injury to the spine clnd of medical expenses — declarations of the injured person contravention of physical laws.
    
    A verdict of $3,500 in favor of the plaintiff, in an action to recover • damages impersonal injuries sustained by his being thrown from his seat in consequence of a collision, while he was a passenger on one of the defendant’s cars, will not be set aside as excessive where it appears that the plaintiff, who, at the time of ‘ the. accident, was about sixty-five years old and free from ills, .was, as-a- result-of the injuries, rendered unable to work and suffered from hernia and partial paralysis of the left leg together with insomnia.
    Under a complaint alleging that the plaintiff was injured ” in his leg and body and internally, and suffered, and. still suffers, severe and intense pain,"and became, and still is, sick and lame; * * * that in particular the plaintiff, as a consequence of the said injuries; is afflicted with a severe case of hernia, and is badly injured in the leg,” the plaintiff may prove an injury to the spine for the purpose of showing that it was the cause of the paralysis of the leg, but not for the purpose of obtaining damages on account of the injury to the spine. - , .
    An allegation in the complaint that the plaintiff “ was put, and will still be put, to much expense in the treatment of his said injuries,” is sufficient to authorize the admission of evidence of the medical expenses incurred by him,
    A physician, who had been called in consultation by permission of the plaintiff’s attending physician and had seen the plaintiff four or five times, may testify to .declarations 'rr,ade to him by the plaintiff of the latter’s .then existingsym.ptoms.;- the fact that such physician states that he expects compensation at a fixed rate per diem does not change the rule.
    Circumstances indicating that the fall of the plaintiff to the right instead of to- • the left was not in contravention of physical laws, considered. .
    Appeal by the defendant, the. Staten Island Electric Railroad ■ Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Richmond on the 27th day of October, 1899, upon the verdict .of a jury for $.8,500, and also from an order entered in said clerk’s office on the 24th day of November, 1899, denying the defendant’s motion for, a new trial made upon the minutes. ...
    
      George. M. Pinney, Jr., for the appellant.
    
      E. T. Lovatt, for the respondent.
   Jenks, J.:

The defendant admitted liability for negligence, and the jury rendered a verdict for $3,500. The defendant insists that the ver- ■ diet is excessive, contrary to the weight of evidence and that there are harmful errors in the rulings of the court. Its contention over the amount of the verdict is based upon an alleged exaggeration of the injuries. The plaintiff, a man about sixty-five years of age, was a passenger in defendant’s car when a.collision occurred. He testified that thereupon he fell or was thrown from his seat upon his left side • that he immediately felt pain in his spine, in his back and side; that the jpain is continuous; that about a month thereafter he developed hernia; that he suffers from ins'omnia; that his left leg is partly paralyzed and that he is unable to work. There is testimony that the hernia and paralysis are permanent. He stated that previous to the accident, throughout life, he had been .free from ills, so that he had never been kept an hour indoors or from his business. ' Several witnesses state that before the accident the plaintiff was stout, hale and sprightly, but after it he became slow, stooping and broken down. If the jury believed that this suffering, disease, change and incapacity were caused by the accident, I think the amount of the verdict. does not warrant the assumption that it represents aught but the jury’s judgment of compensation. The plaintiff’s physicians say that, besides his hernia and paralysis, he suffers the impairments of heart, lungs, liver and blood vessels incident to old age, and the learned counsel argues therefrom that this old man would naturally be injured more than a younger man. Granting this, the argument has, alone, no force against the amount of these damages, unless $3,500 is the highest-sum that the courts will recognize as legal compensation for such injuries when suffered by a man in his prime. Otherwise the jury might have awarded a larger sum to this plaintiff had he been forty, and free from the blight of time.

It is also contended that it is not shown that the accident was the cause of the injuries. It is said that there is no evidence that the collision “ was heavy,” in that no panes of glass in the car were broken, and others of the passengers were uninjured. But several passengers testify that upon collision there was a “smash,” “a severe shock,” a bang ” and “a bang again,” and that they or others were thrown down or cast across the car.

There was a clash' of the physicians who testified concerning the hernia. It is true that the attending physician, pn the day after the,, accident, found only a bruise on the hips and a discoloration in the lumbar region near the spine, and that his prescriptions then called for alteratives and sedatives. . The physicians called by the defendant testify that while a hernia might develop some time after a fall or blow, yet an intense pain ' at the time of the trauma is a necessary sympton, and there was some evidence that the plaintiff had not spoken or testified on all occasions of such a pain. On the other hand, á physician called by the plaintiff testifies that the fall or blow was, in his opinion, the producing cause of his disease, and another physician, who concurred in that opinion, also testifies that he noticed protrusion about a month after the accident. The plaintiff testifies that he has continuous pain in his right abdominal side ■ since the accident. The defendant’s physician admitted that it was possible that protrusion might not appear for some time after the blow or fall that' might have been the efficient cause thereof. Thus there was testimony which, if credited, warranted the finding that this accident caused the hernia. Merely because the finding accords with the views of one set of physicians and not with those of the other set, we cannot test the verdict by weighing the medical testimony or by arraying the physicians. For the jury determined the fact upon the evidence, which ouly included these Opinions to the extent that it believed and valued them. The learned counsel- for the defendant also contends that by physical laws the plaintiff should have fallen to the right, and that,'therefore, injury to the left side or to the left leg was impossible. But there is positive testimony that he fell on his left side, that' the passengers “ fell in a heap,” that the car banged twice,” and that the attending physician found evidences of the injury near the spine on the left of the back, and an injury to the left leg. I cannot conceive of any physical law that absolutely determines the direction or course of a living person under such circumstances. He is the victim, of opposite forces, of probably different power; he does not remain inert aud positively subject to any single force. He may resist or counteract in degree one or both 'of the forces. The direction of the plaintiff may have been toward the right, and his own impulsive resistance may have sent him to the left. The field of speculation is wide, and there is no positive law so paramount as to warrant the jury to disregard the positive testimony or to justify an inference on the authority of such precedents as Fox v. Le Comte (2 App. Div. 61; affd., 153 N. Y. 680). So far as the paralysis itself is concerned, the physicians of the plaintiff testify that the accident was a sufficient cause, and one of the defendant’s experts stated that he thought that the' accident “ had something to do with the leg.”

It is also insisted that the court érred in admitting any evidence of injury to the spine. The plaintiff complained that he was .hurt and injured “in his leg and body, and internally, and suffered, and still suffers, severe and intense pain,- and became, and still is, sick and lame * * * that in particular, the plaintiff, as a conse-

quence of the said injuries, is afflicted with a severe case of hernia, and is badly injured in the leg,” etc. The learned counsel for the defendant calls our attention to the testimony of the attending physician, taken under objection, that he had treated other cases of affection of the spine, and states in his printed points “ If the evidence as to the injury to the spine had been confined and limited as only being proved for the purpose of showing that it was the cause of. the paralysis in the. leg, defendant’s objection might not have been well taken, but throughout the case the jury were allowed to take into consideration as an independent element of damage the pain and injury to the spine.” In my opinion, the references of counsel to the record do not establish his projDosition, but rather the premise of his concession, namely, that any evidence of injury to the spine Avas only proved “for the purpose of showing that it was the cause of the paralysis in the leg.” We are first referred to the testimony of a physician who was describing his examination of the plaintiff.: “ He (the plaintiff) began to quiver, and the more I directed him to put his knees outward the more this quivering increased; that is a symptom of lack of spinal force. That is the mildest term I can give it, lacli of reflex power in the leg. The common term used in medicine for that within the last twelve years has been known as railroad spine.” I read in this testimony a diagnosis of the disease of the leg as due to a lack of spinal force, and I think it was admissible in explanation of the disease and as accounting for the cause thereof. The second citation refers to a question as to the experience of a physician in cases of railroad spine. The third citation points to this part of a hypothetical question, “ has lost in flesh, has lost in memory, the pains in the back from the spine down through the left leg still continuing; ’» and to the.answer to that question,.that “the,most likely cause is the shock, the direct blow against the- spinal column.” The subject of thq inquiry was not an injury to the spine, but the cause of the injuries pleaded. "We are further referred to a question as to the effect of blows in or near the spine. The plaintiff had testified, without objection, that immediately after the fall he had suffered pain in the spine — in his back; and' the attending physician had found concussion’-in the lumbar region, slight -paralysis leading down into the,knee and a bluish discoloration near the spine. The theory of the plaintiff was that he was injured near his spine, when he struck or fell, in his back, so that paralysis of his leg followed. The testimony -that makes mention of the spine was in explanation Of cause and effect, not to establish any injury to the spine itself, as an effect of the accident. To exclude this testimony, when its purpose is evident from the context, would be to shut out the medical reasoning that connected the blow near the spine with the paralysis of the leg. -No claim was made for any -injury to the spine ; no evidence was offered that tended to include such injury in the elements of damage, and the learned court charged the jury"to consider only the injuries then specified by it and specifically pleaded in the complaint. " ,

It is urged that the court erred in admitting evidence of the medical expenses. The plaintiff complained that he “ was put, and will still be put, to much expense in the treatment of his said injuries.” The reference is plain enough, and the statement was probably sufficient to afford notice to the defendant of the claim. (Frobisher v. Fifth Avenue Trans. Co., 81 Hun, 544; affd., 151 N. Y. 431; Popp v. N. Y. C. & H. R. R. R. Co., 26 N. Y. St. Repr. 639; Cleveland v. New Jersey Steamboat Co., 25 id. 666.) If the allegation was too general, .the defendant, on motion, could have had it made more specific. (Frobisher v. Fifth Avenue Trans. Co., supra.) The learned court stated that it. had permitted an amendment, and the record sustains' the court, inasmuch’ as counsel for plaintiff, in effect, made application therefor early .in the trial, when he asked -permission to prove such item of damage. If the evidence was admissible under the original complaint, the amendment made upon trial or made and thereafter formulated by order did not prejudice the defendant. (Radley v. Connell, 79 Hun, 603, 607.) And the amendment was within the sound discretion of the court. (Laufer v. Boynton Furnace Co., 84 id. 311.)

The counsel for plaintiff put this question to Dr. Lesser, a physician called-by the plaintiff: “ How, then, I want you to go on and state what was said by the patient in response to your questions ? ”, Defendant’s counsel said : “ Let him be confined to what he found. We cannot be bound by what this patient said. This gentleman is put on as an expert.”' The objection was overruled and defendant excepted. The witness answered : “ He said from a certain day that he suffered intense pain in his back ; a feeling as if he could not move his limbs as he desired to, and a certain coldness in his limbs. He also complained of pain in his right side, above, that is, in the groin, and in the left side below the groin ; that is, anteriorly, the forepart of the body. At the same time the pain was more extensive on the left side of his back, he claimed, than it was on the right.” It is evident that this statement is not a narration of past suffering not then existing, but of the then subjective symptoms of the plaintiff, and is, therefore, not objectionable as hearsay. I think that the téstiinony fairly establishes that the relation of the plaintiff and Dr. Lesser at the time of this examination was that of patient and physician. Dr. Lesser had been called in consultation by the permission of the attending physician and had seen the patient four or five times. He was informed of the treatment and of the prescriptions. He gave his opinion on the treatment in .the past, and not only advised but ordered the treatment of xthe future. He advised a surgical operation. He did not take the patient out of the hands of the attending physician, but such is not the function-of the consulting physician, as implied in the very term. I am of opinion that, as this particular testimony of the physician related to the statements of the present condition, pain and suffering of the patient, made to his physician with a view of treatment, it is, therefore, admissible under the rule laid down in Davidson v. Cornell (132 N. Y. 228). Counsel for the defendant cites the record to establish the fact that Dr; Lesser was. an expert in that he stated that he expected compensation .at a fixed rate per diem. Conceding this, I think that it does not change the rule, for the question is as to the relation that existed' between the witness' and the patient at the time the testimony, in question was elicited by the witness. (Matteson v. N. Y. Central R. R. Co., 35 N. Y. 487, 491; Davidson v. Cornell, supra ; Kent v. Town of Lincoln, 32 Vt. 591.) In Matteson v. N. Y. Central R. R. Co. (supra) the court say: “ Such complaints and representations are original testimony and not hearsay. (1 Greenl. Ev. § 102.) This is the case, notwithstanding the examinations referred to were made by the physicians after the suit was commenced, and with a view to their, testifying therein as to the result of their examinations. ' It does not appear that the patient knew that such was their object, and, if she did know it, the jury were to judge whether her representations were false or her testimony collusive. (28 N. Y. 344 ; 32 id. 600.)”

The exception to a hypothetical question Under the objection thereto, “ so far as it implies or assumes that this plaintiff got any blow in the spine,” did not exactly state the terms of the question, which were “ a blow near-the spine and to the left of the spine in the lumbar region.” The plaintiff had testified that after the accident he had suffered pain immediately in the spine here, “in my hack here (indicating),” and the physician testified that he had found concussion in the lumbar region.

. The judgment and order should be affirmed. ■

Judgment and order unanimously affirmed, with costs.  