Santolo v. Interborough Rapid Transit Co.

Page, J.:

The action is brought by an administrator to recover damages for negligently causing the death of the deceased.' On September 24, 1918, while the decedent, accompanied by four other women, was alighting from a down-town subway train *35at the Fiftieth street station on the Lexington avenue line, the door of the train was closed by the guard and she was caught and squeezed between the door and the door-jamb, bruising her left arm,' shoulder and side. The guard opened the door and her friends assisted the decedent to a chair. They told the ticket chopper and also the ticket agent of the accident. The latter inquired whether she desired him to send for a doctor and she said no, and the five women proceeded upstairs. In about fifteen minutes they returned and said that the decedent was suffering a great deal of pain and would like to have him send for a doctor, whereupon the doctor and an ambulance came from Bellevue Hospital and after an examination the doctor took the decedent to Bellevue Hospital, her friends following. The decedent refused to remain at the hospital and proceeded home by subway. A Dr. Rueck was called on the night of the day of the accident; and he testified that he found the decedent’s left shoulder discolored, that she could not raise her left arm, and that she complained of pain in the entire left side of her chest. He made an examination and discovered that there was no fracture of any of the bones either of the arm or shoulder or of the ribs. He told her to apply wet dressings to the shoulder and put her arm in a sling. He attended her until the tenth day of October. He testified that during this time he made frequent examinations of the chest with a stethoscope and found no evidence of pneumonia; she had no temperature or sore throat. He testified further that he did not see the deceased again until the twenty-seventh day of October when she had lobar pneumonia on the left side in the last stage and also had rales in the other lung. He testified that the decedent did not have influenza and that he did not attend the children for influenza and that he did hot report her to the' board of health as suffering from influenza on October sixteenth, but when confronted with a report that he made to the board of health of influenza cases, dated on the sixteenth of October, in which he had reported the deceased and her five children suffering from influenza, "he corrected his statement and said that he must have visited them on about that day as he gave the time of their having had the influenza as one day. On October eighteenth Dr. Crump, the family physician, called. He *36testified that he had been summoned two days before, but had been unable to call on the deceased because that was the height of the influenza epidemic and he had been so occupied with other cases. When he called on the eighteenth, he found her suffering from lobar pneumonia. From this she died on the twenty-eighth day of October.

The defendant denied knowledge that any accident had happened, and called members of the train crew, who were stated to have been operating the train which the decedent claimed to have taken, and they testified that no such occurrence happened. But the ticket chopper and the station agent both admitted that the deceased and her friends spoke to them in regard to the accident and that the ticket agent sent for the doctor and ambulance. The defendant further contended that the death of the decedent was not occasioned by the injury sustained from the closing of the door.

The jury returned a verdict for the plaintiff for $8,000. The questions presented on this appeal are: Was the injury the proximate cause of the decedent’s death, and was the verdict excessive?

Mr. Justice Rumsey has very clearly stated the rule to be applied in determining liability in a case of this character in Weber v. Third Avenue R. R. Co. (12 App. Div. 512, 514): The question always is, was there an unbroken connection between the wrongful act and the injury — a continuous operation? Did the facts constitute a continuous succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? (Milwaukee & St. Paul Railway Co. v. Kellogg, 94 U. S. 469.) It is not necessary for the plaintiff, who claims that the injury was the proximate cause of the consumption of which this man died, to show that it was the only cause. It is sufficient if she establishes that the injury set in motion other causes which produced the disease and the death, but which, in the absence of this injury, would not have produced it. (Polled v.Long, 56 N. Y. 200.) But this proof on the part of the plaintiff must be made by evidence which establishes the fact, and, unless the evidence is sufficient to show the connection between the immediate cause of the death and the injury received, the plaintiff cannot recover,”

*37Tested by this rule, I am of opinion that the verdict was contrary to the weight of the evidence. There appears to be a, competent independent cause intervening between the negligent act of the defendant and the death. If the decedent had influenza on or prior to October sixteenth, as would appear from the report filed by Dr. Rueck, it might have been the cause of her death. It is well known that during the epidemic of influenza in 1918 pneumonia followed in many cases and a great many deaths from that cause followed the influenza without other cause. The decedent’s husband and a neighbor who called in daily and assisted with the housework and care of the children denied that the decedent had had influenza or that the children had influenza. Therefore, the evidence that the defendant had influenza is limited to the report made by Dr. Rueck to the board of health. That the pneumonia developed as a result of the injury to the arm and side would' appear doubtful, from the fact that from September twenty-fifth to October tenth no symptoms of pneumonia were discovered, although a careful examination was made of the patient.

In the cases where an injury has been held to be the proximate cause of death resulting from consumption, pneumonia or other disease, there has been a continuous succession of events down to the time of the death, and a direct relation between the injury and the development of the disease. (Hurley v. N. Y. & Brooklyn Brewing Co., 13 App. Div. 167; Purcell v. Lauer, 14 id. 33; Wood v. N. Y. Central & H. R. R. R. Co., 83 id. 604; Eichholz v. Niagara Falls H. P. & M. Co., 68 id. 441; Sallie v. New York City Railway Co., 110 id. 665; Foils v. Robertson, 188 id. 359.) In the case under consideration, the only evidence that the pneumonia from which the decedent died was the result of the accident is the testimony of medical experts. The evidence was conflicting as to the existence of a supervening influenza.

It is not necessary in the view we take of this case to consider the amount of the verdict. Under the conditions of the proof, the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Clarke, P. J., Laughlin and Smith, JJ., concur; Greenbaum, J., dissents.