Mary Des Moineaux, Respondent, v. New York City Railway Company, Appellant

Mary Des Moineaux, Respondent, v. New York City Railway Company, Appellant. First Department, April 5, 1907. Negligence — excessive verdict — failure to show that injuries resulted from accident. • When in an action to recover for personal injuries, the verdict is based on a condition of hysteria in the plaintiff, and it appears that shortly prior to the accident she underwent a surgical operation which might have produced the hysteria and the only other injuries shown were trifling, the plaintiff has failed to sustain the burden of showing that the hysteria was the result of the accident, and a new trial will be granted unless the-plaintiff reduce the judgment. - Appeal by the defendant, the New Y orle .City Eailway Company, 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 20th day-of October, 1906, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 22d day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes. Bayard H. Ames, for the appellant. Grant C. Fox, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: In this action for injuries received in consequence of a collision between two of defendant’s cars, the appellant admits its liability for whatever injuries resulted from the collision, questioning only the amount of the recovery. Plaintiff was a married woman of about thirty-two years of age. Her strictly physical injuries were slight, but shortly after the accident she developed á condition of hysteria winch was serious and continued down to the date of the trial, and, as was testified to, would "probably continue for some time thereafter. The question principally litigated was whether or not this condition . resulted from the accident, or from an operation to which plaintiff had submitted a few weeks prior to the accident. On October 3, 1903, plaintiff was operated on at the Plower Hospital in the city of Hew York and -important organs of her body were removed. On October thirtieth she was discharged from the hospital and on Hovember ninth met with the accident for which she sues. A curious, and perhaps significant fact is, that when defendant’s physician examined the plaintiff on June 4, 1904, about seven months after the accident, in the presence of her husband and the physician who had operated on her, nothing whatever was said about the operation which plaintiff had undergone, and many of the symptoms testified to and dwelt upon at the trial were not referred to. This circumstance suggests either that the plaintiff desired to mislead the defendant as to the extent of her injuries, or that she had not at that time determined to assert her present claim that the accident alone was responsible for her condition of hysteria. The result of the medical testimony, as we read it, was that it was at least as probable that plaintiff’s hysterical condition resulted from the operation as that it resulted from the accident, and we do not consider that she sustained the burden of proving , by a fair preponderance of evidence that her serious condition was the result " of the accident, and not of the operation. If her hysteria did in fact result from the accident the verdict was none too large. If it did not, her other injuries would be liberally compensated by a much smaller verdict. The judgment should be reversed and a new trial granted, with costs to appellant to abide the event, unless the plaintiff shall stipulate to reduce the judgment to $1,135.45, in which case the judgment as modified should be affirmed, without costs to either party. McLaughlin, Houghton and Lambert, JJ., concurred; Patterson, P. J., dissented. Judgment and order reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as stated in opinion, in which event judgment as so modified and order affirmed, without costs. Settle order on notice.