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Opinion of the Court, per ALLEN, J.

“ Assuming that in November, 1864, while attempting to alight from the cars, she was thrown down and dragged upon her back for a number of feet until she became insensible, and from that time until this time there was pain in this part, and no intervening cause that you have knowledge of, what, in your opinion, was the cause of this psoas abscess ?”

Objected to as incompetent, improper, leading, and called for evidence of damages which were too remote from the injury complained of.

Objection overruled, and defendant excepted.

Ans. “If we could find no other cause, we would naturally attribute it to that injury. I think the injury was adequate to produce the condition I saw in 1867."

George G. Munger for the appellant. The evidence from Dr. Faling, as to a recurrence of the inflammation, was improperly admitted. (18 N. Y., 534, 542, 545; Curtis v. Roch. d. Syr. R. R. Co., 26 id., 49, 52; Drew v. Sixth Avenue R. R. Co.; Sedgwick on Dam., 108; Lincoln v. Sar. & Sche. R. R. Co., 23 Wend., 425, 435.)

J. H. Martindale for the respondent. The opinions of medical



the facts as to the cause and the results of the injury, were competent. (Buell v. N. Y. C. R. R. Co., 31 N. Y., 320; People v. Lake, 2 Ker., 362; Curtis v. R. & S. R. R. Co., 20 Barb., 391.) Prospective damages are recoverable in this action. (See cases before cited; also 2 Redfield's Laws of Railways, 220; Hopkins v. Atlantic and S. & L. Railway, 36 N. H., 9.) Plaintiff

' was entitled to recover for loss of services of his wife. (Reeves' Dom. Rel., chap. 4, p. 63; chap. 90, Laws of 1860.)

ALLEN, J. Successive actions cannot be brought by the plaintiff for the recovery of damages, as they may accrue from time to time, resulting from the injury complained of, as would be the case for a continuous wrong or a continued trespass. The action is for a single wrong, the injury resulting

Opinion of the Court, per ALLEN, J.

from a single act, and the plaintiff was entitled to recover not only the damages which had been actually sustained up to the time of the trial, but also compensation for future damages ; that is, compensation for all the damages resulting from the injury, whether present or prospective. The limit in respect to future damages is that they must be such as it is reasonably certain will inevitably and necessarily result from the injury. To exclude damages of that character, in actions for injuries to the person, would necessarily, in many cases, deprive the injured party of the greater part of the compensation to which he is entited. (Curtis v. R. and S. R. R. Co., 18 N. Y., 534; Drew v. Sixth Av. R. Co., 26 N. Y., 49.) Any evidence, therefore, tending to show the character and extent of the injury and its probable results, as well as the probability of a return of the disease induced by the injury, in the ordinary course of nature, and without any extrinsic superinducing cause, was competent to enable the jury to determine the compensation to which the plaintiff was entitled.

In the case of a fractured limb, it was thought that the present and probable future condition of it were proper matters of inquiry. (Lincoln v. Sar. and Schn. R. R. Co., 23 W. R., 425.) The consequences of a hypothetical second fracture were deemed too remote. The question to Dr. Faling as to the probability, from his experience and medical knowledge, of a recurrence of an inflammation of the injured muscle, and his answer that he could not say the probabilities were very strong, but that he should feel, speaking from experience, that there was danger of the return of the inflammation and accumulation of the fluid, was competent.

The evidence was that of a medical expert, as to the ordinary or probable course of disease in the injured muscle, which had resulted directly from the injury complained of, and related to the future condition of the person injured, so far as that condition could be ascertained from medical learning and experience. So, too, the opinion of the same physician, that he should expect, if there were no return of inflammation, that the general health of Mrs. Filer would improve,

Opinion of the Court, per ALLEN, J.


but would always be somewhat impaired, was proper and competent, to enable the jury to ascertain the actual extent of the injury to the plaintiff.

There is no evidence other than that of experts by which courts and juries can determine whether a disease or injury has been or can be permanently cured, or what its effect will be upon the health and capability of the injured person in the future. The hypothetical opinion of Dr. Hillman as to the cause of the abscess was competent, and the answer, cautiously given, that if they could find no other cause, they would naturally attribute it to the injury complained of, and that such injury received in 1864 was competent to produce the condition he saw in 1867, were properly allowed.

Some latitude must necessarily be given in the examination of medical experts, and in the propounding of hypothetical questions for their opinions, the better to enable the jury to pass upon the questions submitted to them. The opinion is the opinion of the expert, and if the facts are found by the jury as the counsel by his questions assumes them to be, the opinion may have some weight, otherwise not. It is the privilege of the counsel in such cases to assume, within the limits of the evidence, any state of facts which he claims the evidence justifies, and have the opinion of experts upon the facts thus assumed. The facts are assumed for the purposes of the question, and for no other purpose.

There was no error in the refusal to charge as requested.

The question submitted was whether the abscess and consequent illness were caused by the injury received in November, 1864, and if that was found in the affirmative, the plaintiff, if the other facts were found in his favor, was entitled to recover. There was no evidence authorizing the submission of the question whether the abscess might not have been in part caused by the injury spoken of, and in part by some other means. The other questions made upon this appeal are considered and disposed of in the action at the suit of Helen M. Filer.

Statement of case.

There was no error upon the trial, and the judgment must be affirmed.

All concur except CHURCH, Ch. J., who was of counsel and did not vote.

Judgment affirmed.



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The question of negligence is, ordinarily, one of mixed law and fact, and

it is the duty of the court to submit the same to the jury with proper instructions as to the law. What is proper care is sometimes a question of law where there is no controversy about the facts. If, in an action to recover for injuries, the alleged result of defendant's negligence, the question arises as to whether plaintiff, by his own fault, has contributed to the injury complained of, and the evidence is of such a character that a verdict for the plaintiff would be clearly against the evidence, the question is one of law, and should be decided by the court. The question of concurrent negligence is to be determined, however, by the particular

circumstances of the case. Where a passenger upon a railroad, by the wrongful act of the company,

is put to an election between leaving the cars while they are moving slowly, or submitting to the inconvenience of being carried by the station where he desires to stop, the company is liable for the consequences of the choice, provided it is not exercised wantonly or unreasonably. It is a proper question for a jury, whether the adoption of the former alternative is ordinary care and prudence, or a rash and reckless exposure to peril. Under such circumstances, where the decision is required to be made upon the instant, the passenger will not be held to the most rigid

accountability for the highest degree of caution. Plaintiff, a passenger upon defendant's road, had bought a ticket and

desired to stop at Fort Plain, where the train was advertised to stop. It did not stop entirely, and, while it was moving very slowly by, plaintiff was directed by a brakeman to get off, and told that it would not stop or move more slowly. Another passenger got off safely; in attempting to follow him plaintiff was thrown down and injured. Held, that leaving the cars under such circumstances was not, as matter of law, negligence,

but the question was a proper one for the jury. In an action brought by a married woman to recover damages for personal

injuries caused by the wrongful act of another, unless she is carrying on

Statement of case.

a trade or business, or performing labor or services on her sole and separate account, she is not entitled to recover consequential damages resulting from her inability to labor. Her services and earnings belong to her husband, and for loss of such service he may have an action. This right is not affected by the act of 1862 (chap. 172, Laws of 1862), amending the act concerning the rights and liabilities of husband and wife. (Chap. 90, Laws of 1860.)

(Argued February 26, 1872; decided March 26, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff entered upon a verdict.

The action is brought to recover damages for injuries sustained by plaintiff while a passenger upon defendant's cars. The plaintiff left Rochester for Fort Plain, on the evening of the 4th of November, on a train which was to arrive at Fort Plain between three and four o'clock the following morning. On arriving there, the brakeman called out “Fort Plain.” As the cars approached the station they moved very slow, but did not stop. A

A passenger in advance of plaintiff alighted on the platform of the depot from the cars while they were in motion. As the plaintiff was waiting on the platform of the car, the company's brakeman said to plaintiff: “You had better get off; they are not going to halt

At this time the train had started with increased motion, but moved at a slow speed. As the plaintiff attempted to get off, her clothes caught in the steps ; she was thrown down and dragged a considerable distance. The shock ren. dered her insensible for a short time; her back was bruised and she was lame, and suffered pain in her back and hip, which has continued since without intermission. This lameness and pain at length, in the early winter of 1866–67, resulted in psoas abscess and prostration and sickness. She has partly recovered, but is permanently disabled.

At the close of the testimony, defendant's counsel moved for a nonsuit, on the ground that no negligence was shown on the part of the defendant and that negligence or culpable carelessness had been shown on the part of plaintiff. The

any more."

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