Opinion
March 9, 1906.
George J. Gruenberg, for the appellant.
Bayard H. Ames, for the respondent.
This action was brought to recover damages for personal injuries alleged to have been sustained by reason of defendant's negligence in suddenly starting a car which plaintiff was about to board. The injuries received were serious. The skull was fractured to such an extent that it became necessary to remove a piece of bone about two inches long by one and a half to one and three-quarters inches wide from the left side of the forehead, which left the brain exposed except for the skin and the covering on the brain itself. He was also injured in other respects. Plaintiff had a verdict for $2,000, and from the judgment entered thereon he has appealed.
At the trial he sought to show as a result of the injury an impairment of the eyesight. The testimony, however, bearing on this subject was excluded and an exception taken on the ground that such proof was inadmissible under the allegations of the complaint. He also attempted to show that as a result of his injuries he was suffering at the time of the trial from varicose veins. This testimony was also excluded for a similar reason.
The main question presented, therefore, on this appeal is whether, under the allegations of the complaint, plaintiff was entitled to make this proof. The complaint alleged that by reason of the negligence of the defendant "the plaintiff sustained a compound fracture of his skull; his arm, elbow, ankle, legs and back were cut, bruised and contused; and the said fracture made it necessary to have and the plaintiff did have a surgical operation performed on his skull, and have certain bones and pieces of skull and pieces of skin and flesh extracted and removed therefrom, which left his brain at the said break in an exposed condition and without any protection other than the skin which has grown over the said break. That the said break in the plaintiff's skull is a permanent and incurable injury, and is and will be the cause of the plaintiff's being, becoming and remaining afflicted with diseases. That by reason of his said injuries the plaintiff has suffered and will continue to suffer great physical pain and mental anguish, and his physical and mental abilities have been and will remain impaired, lessened and destroyed."
I am of the opinion that under this allegation the plaintiff was entitled to prove an impairment of the eyesight, or any other impairment of his mental or physical abilities, as well as any disease with which he was afflicted which he could prove was directly traceable to or proximately flowed from the fracture of the skull, the injury to "his arm, elbow, ankle, legs and back."
The leading case on the subject as to what can be proved in an action of this character under a general allegation of bodily injuries is Ehrgott v. Mayor, etc., of City of N.Y. ( 96 N.Y. 264). There the allegation was that the plaintiff had "suffered great bodily injury; that he became and still continues to be sick, sore and disabled," and it was held that this was a sufficient allegation to entitle the plaintiff to prove a disease of the spine. But it is claimed that the rule laid down in this case has been qualified to a certain extent by the more recent case of Kleiner v. Third Avenue R.R. Co. ( 162 N.Y. 193). This case does not, in express terms, either modify or qualify the rule laid down in the Ehrgott case, nor do I think, when carefully considered, it changes the rule there stated. The rule now seems to be that under a general allegation of bodily injuries the plaintiff may prove any injury to his person, and if the defendant desires that they should be more definitely stated, then it should move to have them made more specific or for a bill of particulars. But where the complaint specifies the injuries received, then proof cannot be given of any other injuries unless they necessarily and immediately flow from those named.
In the Kleiner case the allegation of the complaint was that the plaintiff had received severe and painful contusions to her head, body and arms, and that her scalp had been lacerated "whereby she sustained severe nervous shock and concussion of the brain and injured her eyesight and she was for a time rendered unconscious, and she thereby sustained permanent injuries and was injured for life." Under this allegation the plaintiff was permitted to prove that the dorsal muscle of the right side was paralyzed and that she suffered from vertigo, curvature of the spine, and other diseases. This was held error, the court holding that the principle in the Ehrgott case did not apply, inasmuch as the plaintiff had specified the injuries which she had sustained and that the allegation was that she " thereby sustained permanent injuries, thus in effect limiting her permanent injuries to those previously alleged." In the case now before us the allegation is that the injury to the skull is and will be the cause of plaintiff's becoming and remaining afflicted with diseases. He was, therefore, entitled to prove that he was afflicted or would be afflicted with any disease which was the direct result of this injury, whether it be an impairment of the eyesight or varicose veins. Then, too, under the allegation that, by reason of the injuries specified, plaintiff's "physical and mental abilities have been and will remain impaired," he was entitled to prove that his ability to see had either been wholly or partially destroyed. Impairment of the eyesight, either complete or partial, resulting from an injury to the skull, if not a disease, is certainly an impairment of one's physical ability to see.
That plaintiff was entitled to make this proof is clearly established by numerous decisions of this court. In Eichholz v. Niagara Falls H.P. M. Co. ( 68 App. Div. 441; affd., 174 N.Y. 519) the complaint alleged that the plaintiff "was greatly shocked and bruised about his body, his spinal column strained and injured, and his leg bruised and the cords and muscles lacerated, torn and disconnected from the bone, and otherwise injuring plaintiff and causing him great pain and suffering, and he was rendered sick, sore and lame and now is and ever since has remained sick, sore and lame." It was held that this allegation was sufficient to warrant the admission of proof that the plaintiff, as the result of the accident, was suffering from diabetes.
In Graham v. Bauland Co. ( 97 App. Div. 141) the complaint alleged that the plaintiff was seriously and permanently bruised and injured, and it was held that proof was admissible tending to show an impairment of eyesight and hearing. In Mullady v. Brooklyn Heights R.R. Co. ( 65 App. Div. 549) it was held that an allegation in the complaint that the plaintiff sustained serious and lasting bodily injuries to his head, limbs and nervous system, entitled him to prove not only impairment of eyesight, but hearing. And to the same effect is Quirk v. Siegel-Cooper Co. ( 43 App. Div. 464).
A case which seems to be directly in point is Radjaviller v. Third Ave. R.R. Co. ( 58 App. Div. 11), in which the opinion of this court was delivered by the present presiding justice. There the complaint alleged that the plaintiff sustained severe injuries on her left foot, left arm, left side of her head and her entire left side. It was there held that this allegation entitled the plaintiff to introduce proof to the effect that she sustained an injury to her left ear. (See, also, Bolte v. Third Ave. R.R. Co., 38 App. Div. 234; Garbaczewski v. Third Ave. R.R. Co., 5 id. 186.) Here, the injuries are alleged, as it seems to me, in a much more general way than in some of the cases cited. The allegation is that the injury to the skull has been, is and will be the cause of plaintiff's becoming and remaining afflicted with diseases. If, as already suggested, an impairment of the eyesight is a disease, then proof would be admissible under this allegation. And this applies equally to the proof as to the varicose veins. Then, under the allegation as to the injury to the skull, plaintiff's "physical and mental abilities have been and will remain impaired," entitled him to show an impairment of any of the physical conditions of the body, which, of course, included seeing.
But it is suggested that the appellant is not in a position to take advantage of these rulings inasmuch as no exception was taken to the charge to the jury bearing upon the question of damages. There was no necessity for taking an exception in order to raise the errors here alleged. When the plaintiff's counsel opened the case to the jury he stated that he proposed to offer proof that the plaintiff's eyesight had been impaired. Defendant's counsel then objected that such proof would be inadmissible under the complaint and the court held that such proof was inadmissible and so instructed the jury, to which an exception was taken. The question was also presented sharply when the plaintiff put Dr. Wolff, an eye expert, upon the stand and, after qualifying him, asked the following question: "State what you found to be his condition." The objection then was interposed that if it were sought to show an impairment of the eyesight, it was inadmissible under the complaint. Plaintiff's counsel stated that the purpose of this proof was to show that the plaintiff had lost the power of his eyesight by the fracture of his skull. The objection was sustained and an exception taken. And a similar ruling was made and an exception taken when proof was offered as to the varicose veins, and in excluding this proof I think the court erred and a new trial should be ordered. Other errors are alleged which would require serious consideration, but inasmuch as there must be a new trial, it is unnecessary to here consider them.
The judgment and order appealed from, therefore, should be reversed and a new trial ordered, with costs to appellant to abide the event.
O'BRIEN, P.J., PATTERSON, LAUGHLIN and HOUGHTON, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.