Opinion
January Term, 1902.
Max Gross, for the appellant.
Sumner B. Stiles, for the respondent.
Present — VAN BRUNT, P.J., O'BRIEN, INGRAHAM, McLAUGHLIN and HATCH, JJ.
The action was brought to recover damages for negligently causing the death of the plaintiff's intestate. It is disclosed by the record that the deceased received an injury by falling down stairs, caused by catching her foot in a defective oil cloth at the head of the stairs in a tenement house kept and maintained by the defendant, which injury it is claimed was the cause of her death. The injury was received on the 9th day of July, 1900, and her death occurred on the fourth day of November following. There was evidence which would have authorized a finding by the jury that the defendant was guilty of negligence and that the deceased was free from negligence contributing to the accident. The only point in the case was as to whether the injuries received were the cause of death. The woman died of placentia previa, and it was claimed by the defendant, and held by the court in dismissing the complaint, that the condition which produced death was not connected with the injury. The physician who attended the deceased shortly after the accident found no evidence of any hemorrhages which would have naturally been found present if the accident had produced the condition which resulted in her death. This physician, when asked a hypothetical question based upon the testimony which the case disclosed, as to the reception of the injury and the subsequent conditions, testified that there was a possibility that the fall produced the condition resulting in death, but he could not state that it did with certainty, and refused to testify that it would. Dr. Stein was called as an expert witness for the plaintiff; he had never attended the deceased, and so far as appears had never seen her. He testified in answer to the hypothetical question that he thought the fall produced the condition from which the intestate died, and being further questioned upon this subject, said: "The fall could produce it." This is the strongest testimony tending to show the connection between the injury and the cause of death. It is evident that it was not sufficient to authorize the jury to find that the fall produced the condition resulting in death. The fact that the fall could produce it, or that there was a possibility that it might be so produced, is insufficient. The law requires that the connection between the injury and the cause producing death must be established with reasonable certainty. A possibility that it might be so produced, or that the fall could produce it, is insufficient. Both statements were conjectural and speculative, and neither statement shows with reasonable certainty that the death was the result of the accident. The complaint was, therefore, properly dismissed.
The judgment, however, dismissed the complaint upon the merits. This was erroneous. There had been no trial upon the merits; the decision was that the evidence offered was not sufficient to show a cause of action. It may be that the plaintiff can procure evidence showing that the injury produced the condition causing death. She has not shown it in this action, which is all that the court determined or could determine at the time the motion to dismiss was made.
It follows that the judgment should be modified by striking out that the dismissal was upon the merits, and as so modified the judgment should be affirmed, without costs of this appeal to either party.
Judgment modified by striking out that the dismissal was upon the merits, and as so modified affirmed, without costs to either party.