Corney v. Central Railroad Co. of New Jersey

Judgment and order unanimously affirmed, with, costs. The evidence fully justified the verdict for the defendant on the first cause of action. When the case was before the court upon the former appeal (209 App. Div. 835), we held that the learned judge who presided at the first trial erred in holding that plaintiff could not maintain an action on the second cause of action alleged in the complaint. On the second trial, now before us for review, plaintiff was allowed to offer evidence in support of his second cause of action. There was a complete failure of proof. The questions propounded to plaintiff’s medical expert were not proper in form, and not based upon proper hypotheses. Indeed, there was no medical evidence as to what the injuries sustained by the deceased were, or what was the pathological cause of his death. Whether intentionally or for some other reason, no attempt was made to prove the immediate cause of death. There was no evidence to justify a finding by the jury that in the brief time elapsing between the accident and the delivery of the injured man to the hospital authorities at Perth Amboy, the defendant violated its duty to decedent. The appellant’s criticism of the learned trial justice is without justification. The exceptions taken by plaintiff to the charge to the jury in its entirety because of the intonation, emphasis and inflection of the voice of the trial justice might better have been taken before the jury had reached its verdict. We can see no reason for interfering with the judgment in this case. Present — Kelly, P. J., Rich, Manning, Young and Kapper, JJ.