Appeal from Trial Term, New York County
Action by Guiseppa Moscarello, as administratrix of Paolo Moscarello, against Samuel B. Haines. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.
Eugene A. Philbin (Stephen P. Anderton, on the brief), for appellant.
M. L. Malevinsky (Frank A. Acer and F. F. Davis, on the brief), for respondent.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and SCOTT, JJ.
Decedent, while in the employ of the defendant, was engaged in the excavation of a vault under the sidewalk and adjacent to a building in process of erection. A stone had been uncovered in the bank on the street side of the excavation and about two feet from the bottom thereof. This stone projected from the bank about 18 inches. It was intended to build it into the retaining wall as a part thereof by what is called racking over it. It fell upon decedent, and he sustained a compound fracture of the leg. The accident occurred on September 24, 1906. Decedent died at the hospital to which he had been taken. on the 3d of October, 1906. The action was brought by his administratrix to recover damages upon the ground that the death of plaintiff's intestate was caused by the negligence of the defendant. At the close of plaintiff's case, and at the close of the whole case, the defendant moved for a dismissal of the complaint, one of the grounds stated being " that there is no evidence warranting the jury in finding that the [114 N.Y.S. 520] intestate's death resulted from the accident which has been described in evidence." The motions having been denied, the defendant duly excepted.
The ambulance surgeon testified:
" I recall the incident of an accident happening to a man by the name of Paolo Moscarello at Sixty-Fifth street and Central Park West, and my going for him in the ambulance.*** I got him on the sidewalk at Sixty-Fifth street and Central Park West. His general condition was one of profound shock. He was in a cold sweat, a very feeble pulse. The man was very white. On examining his leg, I found that he had a compound fracture of both bones of one leg.*** This fracture was apparently from the without in; that is, something had struck it and crushed the bones in. About two inches of bone was sticking out through the flesh. The wound was very dirty. There was visible dirt all in the wound, deep down on the surface of the bone and ground in the muscle bellus which was displayed. It was black dirt-earth. I examined the patient for about 30 minutes. I carried him direct to Bellevue Hospital. I never saw him personally after that.*** I found him suffering from profound shock. He had a cold sweat, his pulse was very weak, and he was white and pale. I did not make an examination of his chest and body and the condition of his internal organs. I could not say anything about that. He was in a serious condition."
He was then asked a hypothetical question, which was objected to, concluding as follows:
" I ask you, Doctor, to state to the court and jury whether or not an injury of that character, in your opinion, whether you can state with reasonable certainty that it would be of necessarily fatal nature."
And in answer he said:
" Not necessarily; that is, in every case it would not be absolutely fatal."
Although Moscarello was taken to a hospital and remained there until he died nine days thereafter, no medical evidence was given of his condition, treatment, or the cause of death by any attending physician other than that given by the ambulance surgeon whose observation extended over 30 minutes and until he delivered him at the hospital. The man may have died from any number of intervening causes in no way connected with the accident. It was an essential part of the plaintiff's case to show ...