Lazarus v. New York City R. Co.

Full title: DAVID LAZARUS, Respondent, v . THE NEW YORK CITY RAILWAY Co., Appellant

Court: Supreme Court, Appellate Term

Date published: Feb 1, 1905

46 Misc. 473 (N.Y. App. Term 1905)

92 N.Y.S. 246

Opinion

February, 1905.

Henry W. Goddard and William E. Weaver, for appellant.

M. Silverstein, for respondent.

McCALL, J.

The court asked the attending physician in this case the following question: "From your examination of the plaintiff and from your knowledge of the subject can you state with any degree of reasonable certainty what this nervousness resulted from?" To which the witness replied, "Yes, sir." When the court asked him to "Kindly state" instead of answering the question as he should have, he being supposedly able to, as indicated in his reply to the court's first query, the witness replied "Momentum and shock is possible to bring on this nervousness in a man." Whereupon the defendant's attorney moved to strike the answer out and the court denying his motion he took an exception thereto. The answer given falls under the ban of a long line of decisions, and it was error that calls for a reversal of this judgment not to have granted that motion, more particularly is this so when we consider that the condition about which the doctor was then testifying was one of the most important features in the litigation.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

SCOTT, J. (concurring).

I concur not only for the reason stated in the opinion of Mr. Justice McCall, but also because there is absolutely no evidence that the accident was the result of any negligence on the part of the defendant. The only proof is that two cars collided and that one of them was operated by the defendant.

GIEGERICH, J. (concurring).

I concur for the reasons stated by Mr. Justice McCall, but dissent from the view that there was no evidence of negligence. The accident itself is such evidence. Where a collision occurs between a car operated by the carrier of passengers and a car operated by an independent company, there is, as between the passenger and the carrier, a presumption of negligence against the latter, which calls for an explanation. Loudon v. Eighth Ave. R.R. Co., 162 N.Y. 380.

Judgment reversed and new trial ordered, with costs to appellant to abide event.