The plaintiff sued to recover damages for personal injures alleged to have been sustained by her while a passenger on one of the defendant’s cars, and occasioned by the negligence of the defendant’s servant, the driver of the car. At the close of the plaintiff’s case a motion- for a non-•suit was made and denied. The appellant insists there was not sufficient proof ■of negligence to go to the jury. As the testimony stood at that stage of the trial, it appeared that' the car was thrown froth the track on a curve in the liné as it turned from one street into another; that the driver was looking at some boys who were quarreling in the street, and that indicated inattention -on his part, arid supported the plaintiff’s theory that the car “jumped the track” on turning the curve for the want of proper guidance of the horse. There was enough shown prima facie to establish that mismanagement of •the driver was the cause of the car leaving the track. The motion to dismiss was renewed when the proofs were closed on both sides, and it is strongly urged by the appellant that it should have been granted. The testimony on behalf of the defendant certainly did show that the railway was in good eon-dition on the day of the occurrence, and that the track at the point at which 'the car left it was constructed in such a manner as to reduce materially the ■ chances of derailment. But no explanation is attempted of what took place; • and it is quite probable that with a perfect road-bed and track, had the driver properly guided his horse, and not been diverted by the incident the plaintiff :related, the car would not have gone off the rails. The judge was right in .leaving it to the jury to find, on the whole testimony, whether the driver ex- • ercised due care in going around the curve.
There is no error in the refusal of the judge to charge as requested by the ■defendant’s counsel; nor are the exceptions taken to the instructions given well founded. The plaintiff was pregnant at the time of the occurrence, and ■ a few hours afterwards was delivered of a child. The evidence clearly shows -it was prematurely born. A few days after the birth of the child the plaintiff was attacked with puerperal peritonitis, and was critically ill for several weeks. The medical witness testified that such an illness as supervened upon the miscarriage might be caused by other agencies, but there is not a word • to show that either of them" existed in this case. The judge was correct, therefore, in refusing to charge that if the peritonitis was caused by the negligence of the physician or nurse, or a consequence of her own poor health, she could not recover for any injury caused thereby. And, for the same want of any testimony to support it, the court was also right in refusing to • charge that, if the child was born after the full period of gestation, the plaintiff could not recover. All the testimony showed directly, without a circum- . stance to impair it, that the child was prematurely born.
The only exception taken to the charge requiring notice relates to an expression of the judge as follows: “Yon have heard the statement of the doc■tor that such a jar or jolt as she [the plaintiff] has described might be a producing cause of premature childbirth, and also that the result might produce peritonitis. ” The physician did say, in so many words, that the miscarriage might have been occasioned by a jolt or jar; and, while he did not use the same exact words as those of the judge in regard to the peritonitis, it is perfectly plain he intended to be understood as testifying that, in the absence of what were called the “outside causes” of puerperal peritonitis, it would be attributable to the miscarriage in this case. Ho prejudice could have resulted "in any way from the remark of the judge, even if it were strictly inaccurate; for the matter was subsequently put in a very plain,-concise, and direct manner. The defendant’s counsel “excepted to the statement of the court that ■the peritonitis was occasioned by the premature birth;” whereupon the court *191remarked: “I do not mean to say that. He did not testify that it was absolutely caused by the premature birth. What I mean to say is that the doctor’s evidence tended strongly to show that it was caused by the premature birth. He stated that there were other causes that might produce peritonitis. ” The judgment, and order denying the motion for a new trial must be affirmed, with costs.
Barrett, J„ concurs. Van Brunt, P. J., dissents.