The plaintiff’s intestate was struck by an automobile operated by the defendant on January 9, 1906, on Broadway near Forty-ninth street. As a result of the accident his femur, was broken and there developed traumatic synovitis of the knee joint. He was taken to the hospital; was found by the surgeon in charge to be suffering from alcoholism. Subsequently delirium tremens developed, and he died on January 11,1906, between eight and nine p. m. I think there was evidence to justify the submission of the case to .the jury as to the defendant’s negligence and the decedent’s freedom from contributory negligence. The only serious question is whether death was caused by the injuries received in consequence of the accident.
The plaintiff called as a witness the surgeon attached to the hospital who was in charge when the deceased was brought there. This surgeon testified that when the deceased was admitted to the hospital he was unconscious; that the left femur was fractured- and he had synovitis, which is the inflammation of the membrane which incloses the knee joint; that at the time he was admitted he was suffering from marked alcoholism and rapidly developed delirium tremens; that delirium tremens is caused by the long-continued use of alcohol; that a person being in such a condition, any violent accident precipitates or hurries up the attack of delirium tremens. The physician also testified that the deceased liad been a very long and chronic user of alcohol; that “ we don’t get delirium tremens, in any case, in the absence of the long continued, excessive use of alcohol. That is absolutely positive. And we don’t get a sobei1, straight, abstinent man to meet with an accident, or to have no accident, and be taken to the hospital in any other condition, and die of delirium tremens. I said tin my opinion, that the injury, this broken bone and synovitis of the knee, may have precipitated this. I mean by 'the word ‘precipitated,’ hurried it up;” that a fracture of the femur and synovitis of the knee are never fatal, and in the absence of the existence of delirium tremens, he judged that the man would have gotten entirely well; that he could not find any reason outside of the existence of alcoholism and the condition of delirium tremens which would have prevented his getting entirely well; that all he was able to state was that in his opinion the injury to the leg and the knee hurried up the delirium tremens; that there *328was no doubt about it, that the cause of delirium tremens was alcoholism. ’
Dr.. Clarke, who was the house surgeon at the hospital, and had charge of the deceased, testified that he was not in the hospital when the deceased was brought in, but first saw him on the following morning ; that he found him suffering from a fracture of the femur, traumatic synovitis and alcoholism; that delirium tremens caused his death ; that he was markedly alcoholic on the morning of the tenth, when the witness first saw him, and developed delirium tremens during that afternoon; that lie died of delirium tremens on January eleventh ; that the deceased was not suffering from shock when the doctor first saw him.
Another physician, who was an expert in mental diseases, testified that he saw the deceased on the evening of January 9, 1906; that he found the deceased with a splint on his left leg, a bandage around thé knee and markedly under the influence of alcohol; that the essential cause of delirium tremens is the overindulgence in alcohol of some character; that his. alcoholic condition was very apparent; that delirium tremens never'occurs without excessive alcoholism; that he saw the deceased again on the following day and found him then suffering1 from delirium- tremens and in a very critical condition ; that delirium tremens cannot be produced by anything but alcohol; that the condition in which he found the deceased on January tenth could have been due to nothing but alcoholism.
We have thus the uncontradicted evidence that the plaintiff’s intestate was struck by an automobile on the evening of January 9, 1906, and at once taken to the hospital, where he was found to be suffering from alcoholism, his condition .indicating a long and excessive use of' alcohol. He had 'a broken femur aiid synovitis, neither of which was a fatal injury. During the tenth of- January his marked alcoholic condition continued, and on the afternoon of the tenth .he developed delirium tremens, from which he died on the evening of the eleventh ; that an accident, of this kind could not produce delirium tremens, as that disease or condition could only be caused "by’the prolonged and excessive use of alcohol. The question ’ presented, therefore, is whether,-upon this undisputed. condition there was evidence to justify a verdict that the death of the deceased was caused by the injury.
*329This action to recover for the death of a decedent is given by section 1902 of the Code of Civil Procedure, which provides that “ the executor or administrator of a decedent * * * may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent’s deatli was caused, against a natural person who, or a corporation which, would have been, liable to an action in favor of the decedent by reason thereof if death liad not ensued.” To sustain the cause of action, therefore, the plaintiff must prove that the wrongful act, neglect or default of the defendant caused the decedent’s death; and this I think this evidence fails to establish. The evidence is uncontradicted that delirium tremens was the cause of death. The accident could not have caused the delirium tremens, and the accident could not, therefore, have caused the death of the deceased. One doctor says that the accident'may have “precipitated,” meaning by that, hurried up, the attack of delirium tremens; but the evidence is undisputed that the accident could not have caused the attack of delirium tremens, and delirium tremens was the cause of death. There is not a single witness in this case who testified that in his opinion the accident caused the death of the deceased, or that the accident had any connection with his death, except that it may have hurried up the attack of delirium tremens which caused the death.
An examination of the authorities in a case of this bind is of little use, as each.case must depend upon the particular facts proved upon the trial, with the opinions of experts based upon such facts. The case of Seifter v. Brooklyn Heights R. R. Co. (169 N. Y. 254) is, however, instructive. . In that case the deceased sustained, in consequence of the accident, a simple fracture of the left fibula. ■ The deceased was treated in the hospital for some weeks, but after his removal an examination of the fracture was made and the bone had united perfectly, there remaining the usual swelling and soreness incident to the presence of the plaster cast. Subsequently a swelling appeared on the deceased’s thigh and lumps on the groin, followed by chills, which remained until the deceased died. It was testified on the trial that the cause of death was septic pneumonia; and the question that was then presented was whether the ."fracture was the proximate cause of the septic pneumonia which resulted in liis deatli. The court said, in quoting from Laidlaw v. Sage (158 *330N. Y. 73): “ A proximate cause is one in which is involved the idea of necessity. Tt is one the- connection between which and the effect is ' plain and intelligible; it is One which can be used as a term by which a. proposition can be demonstrated, that is, one which can be reasoned from conclusively. * * * The proximate cause: being given, the effect must follow.” And/then after defining a remote cause it is said: “The remote cause being given, the effect may or may not. follow.” And although in that case there was expert testimony based upon the hypothetical questions which would justify the conclusion that this septic pneumonia had direct connection with the accident, the court held that the evidence was not sufficient to sustain the verdict, saying: “ Death from pneumonia is not ordinarily the necessary and natural result of'an injury to the fibula bone, and when, as in- this case, it is. sought to establish almost entirely by expert evidence that such result actually followed, the connection between cause and effect should be made so clear that the conclusion can be said" to be the reasonable • result of the- proof;” And this principle was applied by this court in Hoey v. Met. St. R. Co. (70 App. Div. 63); McQuade v. Met. St. R. Co. (84 id. 637); and Koch v., Zimmermann (85 id. 370).
The plaintiff relies principally upon Turner v. Nassau Electric R. R. Co. (41 App. Div. 213); But in that case the expert testimony was sufficient, if believed; to sustain a finding that the injury caused the death, the experts having testified in that case that the deceased would not have had deliriuffi tremens except for .the accident. Assuming that such testimony would have sustained this verdict, its absence in this case prevents the Turner case from béing an authority for "the .plaintiff.
I think, therefore, that the verdict of the jury that the injury was the proximate 'cause of the decedent’s death was not sustained by the evidence, and the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
McLaughlin, J., concurred; •
Judgment and order affirmed, with costs.