Opinion
March 8, 1911.
James McPhillips, for the appellant.
John Van Valkenburgh, for the respondent.
The plaintiff was a passenger upon one of the defendant's cars, and claims that she was injured because the car was started before she had an opportunity to alight after it had stopped to permit her so to do.
The defendant contended that the car was not stopped at all and that the plaintiff attempted to alight while it was in motion.
We think the very great weight of evidence is with the defendant upon this proposition, and we would reverse the judgment and grant a new trial on the ground that the verdict was against the weight of evidence, without any opinion, except for certain exceptions which the appellant urges upon our attention. In view of the new trial which must be had it is proper that we give them consideration.
Against the objection of the defendant the plaintiff was permitted to show by her attending physicians that her symptoms following the injury "suggested" diabetes and "indicated" that the disease was caused by her injuries. Consequences which are merely possible and speculative are not proper to be considered in estimating damages. ( Strohm v. N.Y., L.E. W.R.R. Co., 96 N.Y. 305; Osterhout v. D., L. W.R.R. Co., 138 App. Div. 625; Huba v. Schenectady Railway Co., 85 id. 199.) Assuming that under the pleadings it was competent for the plaintiff to prove that she suffered from diabetes which was caused by the injuries which she received, the possibility of her so suffering was not proper evidence. The physicians were not directly asked their opinions on the subject and their answers to the various questions indicate the doubt that existed in their own minds. The rule that the opinion of experts with respect to the outbreak of new diseases should be confined to probable consequences based upon reasonable certainty is so broad that doubtful and speculative expressions of a physician should not be permitted. Whatever a physician may say with respect to the possibility of one suffering from a certain disease in the future is likely to be construed by the jury as his deliberate opinion on the subject when he himself does not feel sure enough to express it.
The learned trial court charged the jury that it was negligence on the part of the defendant which might be considered by them, if the motorman and conductor worked over ten hours on the day that the accident happened. As matter of fact they had been on duty about thirteen hours. While it was proper enough for the plaintiff, if she could on cross-examination, to show that the conductor was tired out or sick and incapacitated, it was not negligence or any violation of law on the part of the defendant to permit him to work more than ten hours. Section 6 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36) provides that ten consecutive hours' labor shall constitute a day's labor in the operation of all street surface railroads whose main line of travel or whose roads lie principally within the corporate limits of cities of the first and second class. The defendant's line of travel and route does not lie principally within the corporate limits of cities of the first or second class, although its southern terminus is Troy. Therefore, this section of the Labor Law is not applicable to it and the permitting of its conductor or motorman to work more than ten hours was not a violation of law upon which negligence could be predicated. The defendant's conductor had not been on duty sixteen hours, and hence there was no violation of section 1271 of the Penal Law. It was not proper, therefore, to permit the jury to base any negligence of the defendant upon the fact that its motorman and conductor had been on duty more than ten hours the day of the accident.
The judgment and order must be reversed and new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.