Johnson v. Broadway & Seventh-Avenue Raiload

Barnard, P. J.,

(concurring.) The evidence shows that the defendant failed to give the plaintiff, who was a passenger, time to get off from the car when he arrived at the end of his journey. The conductor stopped the car, and before the plaintiff could put his foot tipon the ground, and while he was on the step of the back platform, in the act of stepping off, the car gave a jump forward, and threw the plaintiff at full length upon the street. The injury was very severe. A partial paralysis of the left side of the plaintiff resulted. The accident happened in September, 1887, and the plaintiff could do no work until March, 1888. Since then he could not do the same work, and his injuries caused him a loss of $25 per week up to the time of trial, in January, 1889. Since plaintiff has been at work he has constant pain in his *115side, and cannot bend to the floor and lift heavy things up, and suffers from sleeplessness.

There was proof given tending to show that the partial paralysis continued, and that the plaintiff is to a certain extent lame, and that he will never recover. Three objections were taken on the trial. A direct question was asked by the plaintiff’s counsel of the physician, whether the plaintiff could walk without a cane. (Folio 62.) A general objection was taken, and the answer permitted. Leading questions are always discretionary, and this one certainly did no harm. The fact was proven as to the paralysis of the left side, and that one side was useless. The witness did not answer the question further than to say that the paralysis made a perceptible lameness.

The physician was asked whether, in his opinion, the plaintiff would recover. (Folio 63.) The question is a proper one. The witness had been a surgeon for 18 years, and was qualified to give an opinion as to the result of the injury, whether curable or not. If this proof were proper, then it was not error to permit the jury to consider how far the plaintiff was disabled, and to consider that in arriving at a verdict. Ho other exceptions are presented as a reason for a new trial. The judgment should therefore be affirmed, with costs.