Opinion
June, 1905.
Sidney Smith [ G.T. Goldthwaite with him on the brief], for the appellant.
Herman Gottlieb, for the respondent.
The plaintiff recovered a verdict of $500 for personal injuries. To sustain it I think that she is not bound to maintain the proposition (perhaps still debatable; see Pronk v. Brooklyn Heights R.R. Co., 68 App. Div. 390) that a passenger may recover damages for fright without proof of any immediate personal injury, for in this case the evidence justifies a finding that the plaintiff suffered immediate physical injury as the direct consequence of the collision.
The plaintiff testified that she fell forward, and that her "back was struck by the seat," though she did not strike her back when she first fell. She further testifies that she felt severe pain in her spine, symptoms of internal injuries, and she became nervous, dizzy and sick. She admits that there were no bruises or outside signs of the accident, but physical injury may be inflicted without them. Her family physician, who was not told of the accident until the second call, found her nervous, hysterical and apparently suffering from costal nervous trouble. The physician who examined her shortly before trial found a tender spot near to the sacrum and above it, and symptoms of internal injuries. There is evidence both that her ailments did not exist before the accident and that the collision with its physical consequences to her might be the cause thereof. It could not be determined as a matter of law that there was no evidence of an immediate physical injury.
I think that it was not error to admit under the pleading testimony that the plaintiff suffered from irregularity of menses. One physician testifies that the tenderness found near the sacrum was an indication of uterine trouble; that he found a tenderness in front over the uterine region, and that this condition could be produced by a jar or a blow. Proof of uterine trouble was admissible under the general allegation that "she sustained severe injury to her person, and as the result of such injury she was made sick, sore and disabled." ( Ehrgott v. Mayor, etc., of City of N.Y., 96 N.Y. 264; appd. in Kleiner v. Third Avenue R.R. Co., 162 id. 193.) The subsequent specific allegations of injury in the complaint are, "and has suffered and still suffers a severe shock to her nervous system and was made to suffer from nervousness and headaches and dizziness." The specifications plainly refer only to the injury to her nervous system, and in no way limit or define the "injuries to her person whereby she was made sick, sore and disabled." These remain pleaded in general terms, and, therefore, the rule as laid down in Piltz v. Yonkers Railroad Co. ( 83 App. Div. 30) and cases there cited, does not apply. We think that the damages were not excessive.
The judgment must be affirmed, with costs.
BARTLETT, RICH and MILLER, JJ., concurred; HOOKER, J., not voting.
Judgment of the Municipal Court affirmed, with costs.