Haszlacher v. Third Avenue Railroad

The complaint alleges as a cause of action that on August 12, 1896, while the plaintiff was lawfully a passenger on a car belonging to the defendant, in charge of, or controlled by, *866its agents, servants or employees, owing to the negligent manner in which said car was propelled or driven, the plaintiff was injured in the following manner:

“ Plaintiff was caused to sustain severe injuries, his nervous system was shocked, he was made sick, sore and disabled, he received severe contusions and lacerations on the head and the right arm and shoulder, and on the left leg, and as a result he was sent to the Elower Hospital, and was incapacitated from performing service and will be so incapacitated for a considerable time to come.”

On the trial the following questions were put by plaintiff’s counsel and answers elicited:

“ Q. What expense did you have in connection with the arrangement?

“ Objected to as incompetent, irrelevant and immaterial; overruled; exception.

“A. I put a substitute in my place during the whole season.

“ Moved to be stricken out as incompetent; denied; exception.

<e Q. How long ? A. Hp to the end of October.

u Q. August, September and October? A. Yes.

“ Q. How much was paid out to him?

“ Objected to as incompetent, irrelevant and immaterial; objection overruled; excéption.

“ A. Eight dollars a week and board.”

Thus, the plaintiff, over the defendant’s objection and exceptions, was allowed to testify that while he was incapacitated on account of the injuries he hired and put a substitute in his place for the three months, and paid him $8 per week and board.

Eight dollars for about fourteen weeks amount to $112. The jury rendered a verdict for plaintiff for the sum of $200, so that the $112 item forms the most component part of the verdict.

The proof of this hiring of a substitute for three months at $8 a week is proof of special damage.

It is a special damage, because it seeks to recover damages for consequences which do not necessarily and immediately flow from the injury.

Plaintiff must allege the special damage which he seeks to recover.

It is not alleged in the complaint that the plaintiff expended money in hiring a substitute to work in his place.

The defendant had no opportunity of contradicting tire evidence and its reception was error. Gumb v. Twenty-third Street R. R. Co., 114 N. Y. 411.

*867Furthermore there is no evidence that the work rendered by the substitute was proper or worth the sum paid. 114 N. Y, supra, Judgment appealed from reversed, with costs to the appellant to abide the event.

Fitzsimons, Ch. J., and Conlan, J., concur.

Judgment reversed, with costs to appellant to abide event.