BERTHA LEVY, as Administratrix de Bonis Non, etc., of HERMAN GREENBERG, Deceased, Respondent,
THE J. L. MOTT IRON WORKS, Appellant.
APPEAL by the defendant, The J. L. Mott Iron Works, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of November, 1909, upon the verdict of a jury for $12,000, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.
John C. Robinson, for the appellant.
Herbert C. Smyth, for the respondent.
This is a statutory action to recover for the death of Herman Greenberg, who was in the employ of the defendant, and while in the performance of his duty at its plant met with an accident shortly before noon on the 6th day of August, 1904, from which he sustained a compound fracture of the left femur or thigh bone and was taken to the Lincoln Hospital and Home in an ambulance, arriving there at twelve-thirty-five P. M., and he was operated on,
ether being administered as an anaesthetic, between that hour and two P. M., and remained at the hospital, where he died of pneumonia on the morning of the tenth day of the same month. We deem the verdict, which was for $12,000, excessive, but that alone would not necessarily require a new trial. Although it is possible that the injuries sustained by the decedent caused the pneumonia and were the proximate cause of his death, yet plaintiff failed to sustain the burden upon her of showing this by a pre-ponderance of competent evidence; and there are also other features of the case which render it proper in the interests of justice that a new trial should be granted.
The only evidence received relating to the cause of death, other than the personal injuries, consists of the record of the hospital and the testimony of Dr. Comte, who was the house surgeon at the hospital and who made a physical examination of the decedent and performed the operation, but had no personal recollection of the case or of any fact or circumstance connected with it, and his testimony was based entirely on the hospital records, part of which he made and part of which were made by others. The decedent remained at the hospital in charge of a nurse but under the immediate supervision, care and treatment of Dr. Comte and of the assistant house surgeon, and was seen from time to time by the visiting surgeon, who died before the trial. The assistant house surgeon was in the South at the time of the trial and his testimony was not procured, nor was the physician who administered the anaesthetic at the time of the operation, or the nurse or those who made the part of the hospital records of this case not made by Dr. Comte called or accounted for on the trial. Dr. Comte testified, in substance, that through an oversight on his part or on the part of his assistant, no diagnosis of the case was made by either of them, and none of the observations subsequent to the operations was entered in the records; and that, owing to this omission, the records did not show whether or not any new complications intervened or whether the condition in which the decedent was when brought to the hospital had any connection with the pneumonia or with his death, and that it was possible that there was no connection between them. The hospital records showed that on the physical examination of the decedent before the operation no evidence of disease of the heart,
lungs or abdomen or any organic trouble was found, but that he was found to be poorly nourished and his temperature was low and pulse weak, and that there was a hemorrhage from a lacerated wound on the anterior surface of the thigh about the junction of the lower and middle third and that the wound led through torn muscles to the bone, and that at the bottom of the wound loose pieces of bone were found and the broken ends of the femur lapped, producing a shortening of one inch and a half; that at the operation the loose pieces of bone were removed, the fracture set and muscle and skin properly sewed, and Bucks' extension applied to the lower end of the femur; that the patient was very restless the first night and only slept under the influence of hypodermic injections, and had bleeding from the seat of the injury; that after the operation his pulse rose and remained very rapid and his temperature also rose and remained elevated, fluctuating between 101 and 103; that an entry was first made showing that he died of a pulmonary embolus, but this was erased and pneumonia was entered as the cause of death. Dr. Compte testified that according to the custom he or his assistant should have been summoned when the patient was dying and should have entered on a death card from appearances 'the most probable diagnosis,' from which I infer he means immediate cause of death, and that he made the entry in the record of the case 'Pulmonary embolus' from such a death card, and that an autopsy was made, but by whom does not appear, which disclosed that death was caused by pneumonia and it is fairly to be inferred from his testimony that the erasure of the words 'Pulmonary embolus' was then made and 'Pneumonia' was entered in the record as the cause of death.
Dr. Comte testified that he could not say whether he or his assistant made out the death card, which was not produced or accounted for, but that he copied the entry in the hospital records with respect thereto from the death card; that pulmonary embolus means that the individual is suddenly seized with sharp pains in his chest and almost immediately death follows. 'A pulmonary embolus is a plugging up of the pulmonary artery by means of some foreign substance that has got in the circulation some way or other. This foreign substance may come from anywhere in the body so long as it gets into the circulation. Following an injury an embolus
may develop. * * * An embolus is either blood clot, a piece of bone or a piece of marrow, or vegetation, that is something from the heart valve; in fact, something that develops in the body of a foreign nature that gets into the circulation through perforating a blood vessel, travels around through the circulation, enters the heart, is pumped from the heart into one of the arteries; there irritates the coat, sets up the clot, stops circulation in that part of the body; if it happens to be in the pulmonary artery death is instantaneous, because all the blood is backed up, cannot enter the lungs.' He further testified that 'Emboli will develop from fractures often' and will then travel through the system. It may well be that the jury, aided by this evidence, would have been warranted in finding that the pulmonary embolus was caused by the injuries if there were any competent proof that the decedent had a pulmonary embolus. ( Kelly v. Wills,116 A.D. 758; Hurley v. N.Y. & Brooklyn Brewing Co., 13 id. 167.) Not only was the record of that entry canceled, but all of the testimony with respect to it is hearsay evidence and of no probative force and was incompetent and received on objection and exception duly taken by the defendant. Dr. Comte further testified that the rapid pulse and high temperature might be due either to absortion of decomposed or dead tissue or material or to some acute inflammatory process and that the records did not show which, except as they showed that death resulted from pneumonia; that shock caused by the injury and the ether would be exciting causes to produce pneumonia and if the pneumonia developed within twenty-four hours, as was probable from the hospital records with respect to decedent's pulse and temperature, would be competent producing causes, and that the 'chances' were that the pneumonia was the result of the anaesthetic due to the lowered general condition of the patient; but he could not say even from the hospital ...