W. E. Benjamin, for appellant.
Nathan D. Stern (Julius J. Michael, on the brief), for respondent.
Argued before WOODWARD, JENKS, HOOKER, GAYNOR, and RICH, JJ.
The defendant was not informed of the time of the trial, and was consequently not present in court. He was represented, however, by counsel, and we cannot say that the result would have been different had he been present. The verdict awarded plaintiff $500 damages. The action was brought to recover for personal injuries, and the judgment has been affirmed by this court.
Upon the trial the real question submitted for the consideration of the jury related to the extent of plaintiff's injuries. After the accident he was taken to a hospital, where he remained about an hour, and he then went to the residence of his mother-in-law, where he was treated a few times by Dr. Lesser. After two days he was taken in a carriage to his home. Upon the trial he testified:
" When I got home, I laid in bed. I was confined to my bed about eight weeks. During that time I had pains in my head, at the part of the head where the hammer struck.*** When I got to my mother-in-law's, with my sister, the first thing they did they sent for a doctor. I went to bed. They undressed me. That same day the doctor came. I could not tell you [114 N.Y.S. 468] how long before the doctor came. I do not remember that. I don't know. Q. You were conscious all this time, weren't you, when you were home? A. No, sir; I don't know what was done to me. I don't know when the doctor came. I don't know anything. I do not remember what happened to me. I don't know where I was. I know I was lying in bed; yes. I did not know anything. The doctor came soon, of course, when they sent for him-soon he came. I did not eat no supper. I don't know whether it was before or after supper. I had not lunch then. I could not tell you if it was before the supper time of the family, or afterwards. I think it was nighttime. I don't know. Daytime was night by me at that time, too. I don't know how long the doctor stayed there when he did come. He opened my bandage, and put a new bandage on, and gave some medicine to me. I don't know what medicine.*** The doctor came the next day. I do not remember what time in the day. I do not know. I do not know how long he was there. I don't know what he did. I do not remember that. I was in bed. I know I was lying in bed. My meals were brought to me near the bed. Certainly I was not up. The doctor did not come to Henry street, the third day. It seems to me that he called about four times in Henry street. I was in Henry street about two days, and the doctor came about four times. I do not remember whether he came twice a night or twice a day; about four times, yes.*** I stayed in bed all the time that I was at my mother-in-law's, until the time I got ready to leave and went to my home. I remained in bed. I do not remember the circumstances of my leaving. I know how I got from my mother-in-law's to my own home in Brooklyn. I know that I was going with the cab. That is all I remember. I got into a cab from Henry street. My brother-in-law took a cab for me, and took me to Brooklyn. When I got to Brooklyn, I went to bed again."
In answer to the court:
" How long did you remain in bed, after you got home, without getting up at all? A. Oh, about two months."
In answer to Mr. Benjamin:
" I know about this. I know without being told that I was there in bed for two months. Through all that time I never got up, night or day."
In answer to the court:
" During the two months he is talking about, did you have your clothes on at all during that time? A. No, sir; I only had-A month later I just walked over the rooms by having my pants on. That is all; nothing at all."
In answer to Mr. Benjamin:
" Until, as I say, about a month later, I remained in bed all the time; had a walk for about two minutes. I did not sit at the table with the rest of the family until about two months later, nor for two months, and my meals were brought to me in my room. I stayed in my room. I did not go out of the house. At the end of two months, well, I was trying to go to work and make a living for my family. I did go to work at the end of two months. I do not remember exactly the day that I went to work.*** Now I remember it that I brought a bill from the doctor. Dr. Lesser, paid $50. I paid him. I tell you the truth, I do not- I don't know what I am talking about. My head pains me now, just as good as before.*** I paid him in his office. I do not remember if by cash or check. I do not know. I don't know when I paid him. I do not remember it; about a month or two ago-about that. It was not longer than a month ago that I paid him. This doctor called about 20 or 25 times. I don't know whether it is 20 or 25 times. He did not call every day, exactly. I was in my house two months, laid up. Q. And during that time he called these 20 or 25 times? A. Well, at first he called. I think he called when I was-he called-after that called a little ...