Joseph Perelli, Respondent, v. New York City Railway Company, Appellant

Joseph Perelli, Respondent, v. New York City Railway Company, Appellant. First Department, June 14, 1907. Trial—negligencé—When permanency of injury should not be . . submitted. ■ , , i In an action for negligence it is error to submit to the-jury the- question as to the permanence of the plaintiff’s injury when there- is no . evidence on that subject other than the testimony of an expert who declined to’ express an opinion. . ' Appeal by the -defendant, the - New York City Railway Com? pan y,; from á 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 14th day of January, 1907,. upon the verdict of a- jury for .$2,500, and also from, an'Order -entered in said clerk’s office on the 14th day of January, 19Ó7,. denying the defendant’s motion'for -a new'trial made upon the minutes'. • _ Bayard H. Ames, for the appellant., Thomas F. Gilroy, Jr., for the respondent. [MAJORITY — Per Curiam :] Per Curiam : - It was clear error .to submit to the jury any question as to the permanency of the plaintiff’s injuries,, for there was. no evidence ' justifying such submission: The plaintiff’s, physician, who alone '.was-interrogated on the point, declined to' express an opinion, urging" that an answer “ would be speculative because it all depends'- on the kind of, treatment he received.” There was no other evidence . on the subject.' • ’ - - The. judgment and order should be reversed and á new trial granted, with costs to appellant to abide the event. Present — Patterson, P. J., McLaughlin, Laughlin, Houghton and SoOtt, JJ. 1 ... Judgment and. order reversed, new trial ordered, costs to appellant to abide event.