New York County NyArchives Court.....Johnson, David Vs. Manhattan Railway Co 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, March Term, 1889.

DAVID M. JOHNSON, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

Defect in the railing of the stairs in a railway station — proof of similar 
accidents, happening after the plaintiff's accident, is not admissible—recovery 
of present damages for apprehended future consequences—proof as to the amount of 
plaintiff's earnings, when not admissible.

In an action, brought to recover damages alleged to have been received by the 
plaintiff in falling over the railing of a stairs in one of the stations upon 
the defendant's road, upon the ground of the negligence of the defendant, the 
plaintiff sought to establish such negligence by proof of the method in which 
the rail from which the plaintiff fell was constructed, and by proof that other 
accidents had happened because of such faulty construction.

Upon the trial some of the witnesses, who testified as to accidents of a similar 
character, were unable to determine whether the accident happened before or 
after the accident of the plaintiff.

Held, that testimony as to other accidents could not be admitted, except for the 
purpose of showing that the defendant had learned by experience that the 
structure was insufficient, and still maintained it in that defective condition.

That the fact that accidents had happened, after the one from which the 
plaintiff suffered, in no way tended to establish any such proposition, and that 
it was for the plaintiff to show, when he proved the happening of the accident, 
that it occurred prior to the time of that by which the plaintiff was injured 
and not to leave that matter to be determined simply by conjecture.

To entitle the plaintiff, in an action of this character, to recover present 
damages for apprehended future consequences of such an accident, there must be 
at least such a degree of probability of their occurring as amounts to a 
reasonable certainty that they will result from the original injury. It is not 
enough that the injuries received may develop into more serious conditions than 
those which are visible at the time of the injury, nor even that they are likely 
so to develop.

Upon the trial evidence of the aggregate amount of the plaintiff's earnings 
during, the year or two prior to the accident was admitted. The evidence showed 
that the earnings of the plaintiff were the result in part of the use of his 
capital and did not depend entirely upon his personal skill and services.

Held, that it was error to admit this evidence, as it is only in a case where 
the earnings proceed entirely from the plaintiff's labor that such evidence 
becomes admissible.

Ehrgott v. Mayor (96 N. Y., 265) distinguished.

Appeal from a judgment entered at a Circuit Court in the county of New York, 
upon a verdict rendered in favor of the plaintiff, in the office of the clerk of 
the city and county of New York on May 1, 1888, and from an order denying 
defendant's motion, made upon the minutes of the justice presiding at the trial 
to set aside the verdict and for a new trial, which was entered in the office of 
said clerk on the 27th day of April, 1888.

E. S. Rapallo, for the appellant.

A. G. Vanderpoel, for the respondent.

Van Brunt, P. J.:

This action was brought to recover damages alleged to have been received by the 
plaintiff in falling over the railing of the stairs of one of the stations upon 
the defendant's road. It is not necessary to state the facts established by the 
evidence in order to determine the questions arising upon this appeal. It is 
sufficient to say that the action was founded upon the negligence of the 
defendant, and it was sought to establish such negligence by proof of the method 
in which the rail over which the plaintiff fell was constructed, and that other 
accidents had happened because of such faulty construction. In order that the 
plaintiff should succeed in this case, it was, of course, necessary to prove 
that the defendant had been guilty of negligence in respect to their platform 
and the approaches thereto. They were bound to use that ordinary care and 
diligence which a person of ordinary prudence would exercise in reference to 
such structures, considering the uses to which they were to be put. They were 
not bound to anticipate every danger, neither were they bound to provide for the 
unexpected. As long as the structure was reasonably suited to the purposes to 
which it was to be applied, and their attention had not been called to any 
deficiency resulting from experience, the defendants were not guilty of 
neligence.

In order to show that this rail was insecure to the defendant's knowledge, and 
that, therefore, they were guilty of negligence, the plaintiff offered evidence 
of other accidents of a similar character which it was claimed had happened. In 
reference to some of these accidents the witness was unable to determine whether 
it happened before or after the accident to the plaintiff. A motion was made to 
strike out some of this testimony, which motion was denied. This was clearly 
error. Such testimony could be competent only for the purpose of showing that by 
experience the defendants had learned that the structure was insufficient and 
still maintained it in that defective condition. The fact that accidents had 
happened after the one from which the plaintiff suffered in no way tended to 
establish any such proposition, and it was for the plaintiff to show when he 
proved the happening of an accident that it occurred prior to the time of that 
which injured the plaintiff, and not to leave that matter simply to conjecture.

It would seem also that the learned court erred in admitting evidence as to 
various physical injuries which the plaintiff would be likely to undergo. A 
physician was examined as an expert, and questions of this character were put to 
him: "What is your opinion as an expert, as to the permanency or likelihood of 
permanency of that injury?" "Would a fall, such as I have described, be likely 
to produce such a result to the brain, in your opinion, in the ordinary course 
of nature as would produce that dizziness or that vertigo or pain when there was 
any heat?" The witness was also asked to give an opinion as to the effect, in 
the ordinary course of nature, as to increasing or diminishing the chances of 
life, the probability of life. And to this question he answered that it might 
not interfere and might not cause death, but the chances are that it would have 
a tendency that way, etc.

This class of interrogatories in the case of Strohm v. Erie Railway Company (96 
N. Y., 305) has been expressly condemned by the court of last resort. It was 
there held that consequences which are contingent, speculative or merely 
possible, are not proper to be considered in ascertaining the damages. It is not 
enough that the injuries received may develop into more serious conditions than 
those which are visible at the time of the injury, nor even that they are likely 
so to develop. To entitle a plaintiff to recover present damages for apprehended 
future consequences, there must be such a degree of probability of this 
occurring as amounts to a reasonable certainty that they will result from the 
original injury. The questions to which attention has been called are clearly 
within the prohibition here expressed, and were no more direct and certain than 
those criticised in the case cited, and because of which the judgment in that 
case was reversed.

There is also another error which seems to have been committed in the 
consideration of the measure of damages in the case at bar. The learned judge 
admitted the evidence of the aggregate amount of the plaintiff's earnings during 
the year or two prior to the accident. This was undoubtedly upon the strength of 
the decision of the Court of Appeals in the case of Ehrgott v. Mayor (96 N. Y., 
265) in which a ruling admitting evidence of previous earnings was sustained; 
that case, however, is clearly distinguishable from the one at bar. In the case 
at bar it appears that the earnings of the plaintiff were the result of the use 
of his capital, and did not depend entirely upon his personal skill and 
services. In the case of Ehrgott the admission of the evidence was justified 
upon the ground that the plaintiff's income was not from capital invested, but 
solely from his personal skill and services, and, therefore, it formed an 
exception to the rule that previous profits in business are not admissible in 
evidence in cases of this description, because of their speculative character; 
and the Ehrgott case was expressly distinguished from the case of Masterton v. 
Village of Mt. Vernon (58 N. Y., 393) because of this feature which appeared in 
the case last cited. In no case has it been permitted, where the profits of 
business arise from the investment of capital, that evidence of such profits 
should be offered for the purpose of enhancing the damages. It is only in cases 
where the earnings proceed entirely from the plaintiff's labor that the evidence 
becomes admissible. For these errors in the admission of evidence a reversal of 
the judgment becomes necessary.

The judgment should be reversed and a new trial ordered, with costs to appellant 
to abide the event.

Brady and Daniels, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide 
event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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