Evertson v. The National Bank of Newport.

98 Mass. 12; Comm. v. Chesapeake, etc., 32 Md. 501; Burroughs v. Richmond Co., 65 N. C. 234. The statute of limitation begins to run against coupons which have been detached from the time of the maturity of the coupons respectively. Clark v. Iowa City, 20 Wall. 583.

The rule of caveat emptor does not apply as to negotiable bouds and coupons, and one who purchases them before maturity in good faith and for value and without gross negligence, has a good title even as against one from whom they have been stolen. Spooner v. Holmes, 3 Am. Rep. 491; Seybell v. Nat. Currency Bank, 2 Daly, 383; Birdsall v. Russell, 29 N. Y. 220; Murray v. Lardner, 2 Wall. 110.

Mere negligence will not defeat the title of the purchaser. There must be either fraud or such negligence as amounts to fraud. Phelan v. Moss, 5 Am. Rep. 402; id. 266, note; Seybell v. Nat. Currency Bank, 2 Daly, 383; Snow v. Leatham, 2 C. & P. 314; Welch v. Sage, 47 N. Y. 143; Goodman v. Simons, 20 How. 366; Hamilton v. Vought, 34 N. J Law, 187.

Mere notice that certain bonds have been stolen will not defeat the purchaser'1⁄2 title when he either failed to remember the fact or where it was impracticable, from the multiplicity of his business dealings, to record or regard such notices. Seybell v. Nat. Currency Bank, 2 Daly, 383; Dinsmore v. Duncan, 57 N. Y. 573; Lord v. Wilkinson, 56 Barb. 593; Snow v. Leatham, 2 C. & P. 314. But see Vermilye v. Adams Express Co., 21 Wall. 138. Nor is a purchaser bound by a notice in a newspaper that bonds have been stolen, unless it be proved he read the same. Raphael v. Bank, 17 C. B. 161; Hagen v. Bowery Bank, 64 Barb. 197.

To be negotiable, a coupon must be so upon its face without reference to any other paper; if it is not payable to order or bearer and does not contain other equivalent words, it is not negotiable. Augusta Bank v. Augusta, 49 Me. 507. Coupons were held negotiable in the following form: "The county of Clark will pay $35 on this coupon on the 1st of January, 1867, at the treasury of said county." Smith v. Clark County, 54 Mo. 58; Johnson v. County of Stark, 24 IIL. 75; McCoy v. Washington County, 3 Wall. Jr. 381. So a coupon in this form "Interest warrant No. 12. On the first day of July, 1856, the X Railroad Co. will pay to bearer thirty dollars for interest on its bond, No. 342. J. S., Treasurer," is negotiable by delivery. Haven v. Grand Junction R. R. Co., 109 Mass. 88.

But when upon their face coupons refer to the bonds to which they were attached and purport to be for the interest accruing thereon, the purchaser of them is charged with notice of all which the bonds contain. McClure v. Township of Oxford, 94 U. S. 429; Harshman v. Bates Co., 92 id. 569.

Coupons bear interest, as a general rule, from the date of a demand of payment made after their maturity. Whitaker v. Hartford R. R. Co., 8 R. I. 47; Beaver Co. v. Armstrong, 44 Penn. St. 63; Fichell v. Penn. R. R. Co., 5 Phil (Penn.) 132.

Vol. XXIII.-3

Sauter v. The New York Central & Hudson River Railroad Company.

SAUTER V. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY.

(66 N. Y.50.)

Negligence- Proximate and remote cause

Mistake of surgeon, when will not

relieve wrong-doer — Evidence — Northampton tables.

Plaintiff's intestate, by reason of defendant's negligence, received an injury which, without surgical treatment, would have caused death. He employed a competent and skillful surgeon, who, in performing the operation, made a mistake sufficient of itself to cause death. Held, that the defendant was liable. (See note, p. 21.)

In an action to recover damages for negligently causing death the Northamp ton tables are competent evidence to show the probable duration of the life of the deceased, which is an element in estimating damages.

A

CTION by Sauter, as administrator of the estate of John Sauter, deceased, to recover damages for injuries to said John Sauter, occasioned by the negligence of the defendant's agents and servants, and which, it was alleged, caused said Sauter's death.

Upon the trial it appeared that on the 17th of March, 1874, the said John Sauter was a passenger on defendant's train from Schenectady to Poughkeepsie; that upon the arrival of the train at Poughkeepsie he was endeavoring in a proper manner to leave the car, when the train was suddenly jerked and he was thrown from the car platform to the ground and injured. He had been previously in good health, but soon after the injury he took to his bed, which he never left again alive.

The other facts sufficiently appear in the opinion.

The plaintiff had a verdict, and the General Term of the Supreme Court affirmed the judgment entered thereon. 6 Hun, 50. The defendant appealed.

S. W. Jackson, for appellant. The onus was upon plaintiff to show that the death of the deceased was caused by defendant's negligence. Sheldon v. H. R. R. R. Co., 29 Barb. 226; Curran v. W. C. and Mfg. Co., 36 N. Y. 153. Defendant was only liable for

Sauter v. The New York Central & Hudson River Railroad Company.

those injuries of which its negligence was the probable cause. S. Neg., 595; Patrick v. Com. Ins. Co., 11 Johns. 14; Livie

v. Janson, 12 East, 655; Flower v. Adam, 2 Taunt. 314; Mott v. H. R. R. R. Co., 1 Robt. 593; Anthony v. Slaid, 11 Metc. 290; Crain v. Petrie, 6 Hill, 522; McGrew v. Stone, 53 Penn. St. 436; Whart. on Neg., § 134. A wrong-doer is only liable for those consequences which are the natural and proximate result of the wrong complained of, and which may be reasonably expected to result under ordinary circumstances. Lowery v. W. U. Tel. Co., 60 N. Y. 201; Putnam v. Bd. and Seventh Ave. R. R. Co., 55 id. 108; Greenland v. Chaplin, 5 Exch. 248; Saxton v. Bacon, 31 Vt. 540; Powell v. Salisbury, 3 Y. & J. 391; Calkins v. Barger, 44 Barb. 424; Wells v. N. Y. C. R. R. Co., 24 N. Y. 181.

E. W. Paige, for respondent. If the mistake of the doctor directly caused the death, and the hernia had nothing to do with it except to render the operation necessary, still defendant is liable. Com. v. Hackett, 2 Allen, 136; Clark v. Lebanon, 63 Me. 393; Vandenburgh v. Truax, 4 Den. 464; Pollett v. Long, 56 N. Y. 202. The deceased was not bound to employ the most skillful surgeon. Ordinary care only was necessary. Lyons v. Erie R. Co., 57 N. Y. 190. The jolt which occurred when the deceased was injured was negligence as matter of law. Milliman v. N. Y. C. & H. R. R. R. Co., 4 Hun, 409; 6 T. & C. 585; Keating v. N. Y. C. & H. R. R. R. Co., 49 N. Y. 673. It was proper upon the question of the duration of life of the deceased to receive in evidence the Northampton tables. Schell v. Plumb, 55 N. Y. 592.

CHURCH, C. J. The circumstances proved were sufficient to authorize the jury to find that the injury was caused by the act of the defendant's employees. The evidence tends to show that as the plaintiff's intestate was passing out of the car to alight, a sudden jerk was given to it backward, and the plaintiff was thrown suddenly forward, his carpet-bag striking the railing, and he striking the carpet-bag. This was proved to be sufficient to cause the hernia of which he died. The circumstances pointed to this as the cause, and repelled the idea of any other. True, the evidence was that it might have been produced by many other causes, but there was no evidence tending to prove that it was produced by any other. On the contrary, the inference was legitimate that it was not.

Sauter v. The New York Central & Hudson River Railroad Company.

It is claimed that the injury was not the proximate cause of death. The deceased had what the surgeons denominated strangulated hernia, an injury certain to produce death, unless relieved. Being unable to reduce it by pressure, an operation was decided upon and performed by surgeons of conceded competency and skill. The operation is a very delicate and dangerous one, but is often and perhaps generally performed with success. In this case the post-mortem examination disclosed that there were two strictures, only one of which had been cut, and that a mistake was made by pressing the intestine into an abnormal cavity, between the peritoneum and pubic bone, produced in some manner by a separation of the peritoneum from the bone, instead of pressing it into the abdomen. There was a difference of opinion whether the immediate cause of death was by the mistake in pressing the intestine into the wrong cavity or by the natural effect of the second stricture which was not cut; but assuming that it was the mistake, which is the most favorable for the defendant, is the principle invoked by the learned counsel applicable? I think not. The cases cited do not sustain the position. The case of Patrick v. Commercial Insurance Company, 11 Johns. 14, was an action upon a policy against sea-risks. The vessel stranded, but before she could be got off she was forcibly seized and burned by a public enemy, and it was very properly held that the damage was from the capture, and not the stranding. Livie v. Janson, 12 East, 655, was analogous in principle. To bring a case within the principle claimed, the general rule is that the actual injury must be occasioned by the intervention of some responsible third party or power. Wharton on Neg., § 134. I do not think that the mistake of the surgeon can, in any sense, be regarded as such. The employment of a surgeon was proper and may be regarded as a natural consequence of the act, and the mistake which it is evident might be made by the most skillful, may be regarded of the same character. In. Lyons v. The Erie Railway, 57 N. Y. 489, the Commission of Appeals held, if one who is injured by the negligence of another, acts in good faith under the advice of a competent physician, even if it is erroneous, he may recover, and that the error is no shield to the wrong-doer. The rule is laid down in Commonwealth v. Hackett, 2 Allen, 137, that one who has willfully inflicted upon another a dangerous wound from which death ensued, is guilty of murder or manslaughter, as the case may be, although, through want of due care

BY THE

Sauter v. The New York Central & Hudson River Railroad Company. or skill, the improper treatment of surgeons may have contributed to the result.

Here it is sought to shield the wrong-doer because the deceased failed to procure relief, although he used the usual and best available means for that purpose. He would have died without an operation; assuming that by the mistake of the surgeon the operation was not successful, can it be justly said, in the first place, that the surgeon and not the injury killed him; and in the second place, that the surgeon is to be regarded as a responsible intervening third person, within the rule referred to? There is no authority that approaches such a proposition. Hence there was no error in refusing to charge that if death was proximately caused by pressing the intestine into the abnormal cavity, the plaintiff could not recover. The court had charged that if the hernia was not the proximate cause of death the plaintiff could not recover, nor unless it was caused by the defendant. The court also charged that if death was produced by the error, ignorance, blunder, or maltreatment of the surgeon, the plaintiff could not recover. The charge was quite as favorable to the defendant as the case would warrant.

Error is also alleged upon the refusal of the court to charge that the plaintiff could not recover, unless the jury found that the injury would be reasonably apprehended by a prudent man as the resuit of the alleged movement of the cars. The court declined to charge other than as he had charged. He had charged that if after the train was stopped it was given such a jolt as to endanger the lives of passengers, the act would be wrongful. The sudden jerking of a train backward while passengers are rightfully passing out of the cars, is evidently liable to produce accidents, and under such circumstances is a negligent act. There was no foundation, therefore, for the test of apprehended danger by a prudent man. At all events, the charge made was favorable to the defendant in any aspect of the case. The Northampton tables were properly received. Schell v. Plumb, 55 N. Y. 592. The probable duration of the deceased's life was an element in estimating damages, and being so, it was proper to give this evidence upon the question. The judgment must be affirmed.

All concur.

Judgment affirmed.

NOTE BY THe Reporter.-One who has received personal injuries through