she walked better and stronger, "but that limb don't swing like the other one. She has had a long rubber stocking for support. * * * She has not used a cane for six months, that I know of. * She has walked a great deal better and stronger since 1893." This evidence warranted the jury in finding that the plaintiff's knee was not entirely well, and that she would certainly suffer some inconvenience from it in the future, because, although more than three years had elapsed since the accident, she still limped, and could not swing her injured leg naturally, or as far back as the other, without pain.

Any physical disability or derangement, directly caused by the accident is a proper element of damage. As there can be but one recovery, it may include damages, not only for what has been actually suffered, from the disabling effect of the injury down to the time of the trial, but also for such pain or inconvenience as is reasonably certain in the future. The prospective disablement may be inferred from the nature of the injury, or proved by the opinions of experts. Curtis v. Railroad Co., 18 N. Y. 534; Filer v. Railroad Co., 49 N. Y. 42 (1); Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256; Shear. & R. Neg. sec. 597; Suth. Dam. sec. 86; Field, Dam. sec. 668; Hale, Dam. 78. In the Curtis Case the court said: "In estimating the pecuniary loss in such cases, all the consequences of the injury - future as well as past are to be taken into consideration." And in the Filer Case: "Successive actions cannot be brought by the plaintiff for the recovery of damages, as they may accrue from time to time, resulting from the injury complained of, as would be the case for a continuous wrong or a continued trespass. The action is for a single wrong, the injury resulting from a single act; and the plaintiff was entitled to recover, not only the damages which had been actually sustained up to the time of the trial, but also compensation for future damages, that is, compensation for all the damages resulting from the injury, whether present or prospective. The limit in respect to future damages is that they must be such as it is reasonably certain will inevitably and necessarily result from the injury." In Kane v. Railroad Co., 132 N. Y. 160, 30 N. E. Rep. 256, the plaintiff had sustained an injury to his hip in a railroad accident; and evidence was given tending to show that, while he was sound before the accident, at the time of the trial his hip troubled him in damp weather, and he could not walk as well as he used to. The court charged that he was entitled "to recover

1. Filer v. N. Y. Central R. R. Co., 49 N. Y. 42, is reported in 5 Am. Neg. See subsequent decisions in

Cas. 147.

the same case in 5 Am. Neg. Cas. 151, 161, 162.

for the injuries that he has sustained, and that the jury can look to the future as well as to the past, because the plaintiff can maintain no other action." The charge was sustained as correct, and it was held that he was entitled to recover for the pain that he would endure in the future. In Strohm v. Railroad Co., 96 N. Y. 305, relied upon by the appellant, while it was held that an expert could not state that certain symptoms might develop into something worse, because it was too speculative, still the court said that "future consequences which are reasonably to be expected to follow an injury may be given in evidence for the purpose of enhancing the damages to be awarded. But, to entitle such apprehended consequences to be considered by the jury, they must be such as in the ordinary course of nature are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible, are not proper to be considered in ascertaining the damages. It is not enough that the injuries received may develop into more serious conditions than those which are visible at the time of the injury, nor even that they are likely to so develop. To entitle a plaintiff to recover present damages, for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury." In the case before us it did not need the testimony of experts to show that the plaintiff would suffer more or less inconvenience in the future owing to the condition of her knee, as it was not yet well, and some time would be required to effect a complete recovery. While the future inconvenience might be slight, and of short duration, the defendant was not entitled to have it altogether withdrawn from the consideration of the jury, or to the instruction that “there is no ground upon which the jury can find any future damages in reference to the injury to the knee."

The condition of the plaintiff's spine as a result of the accident, was the subject of sharp controversy upon the trial. A physician who had treated her for several months, after describing the condition of her spine from actual observation, was asked: "In your opinion as a physician, are you able with reasonable certainty to form an opinion as to the length of time that the condition of the spine, which you have described here upon the stand as existing in the plaintiff, will continue?" After answering in the affirmative, he was next asked: "What will be the continuance of the condition of the spine, in the ordinary and natural course of nature?" The witness answered: "That this condition will continue. That without treatment it will probably increase, and will trouble her more or less as long as she lives. Under the most favorable VOL. V-44.

circumstances, after awhile it might decrease to a certain extent, and remain there. With perfect rest, mentally, and physically, and proper treatment, that after a time it would cease to be troublesome at all, possibly." Each of these questions was separately objected to as incompetent, but the court overruled the objection, and the defendant excepted. The answer to the second question was not objected to as not responsive, and no motion was made to strike it out on that ground. The answer to the first question qualified the witness to state with "reasonable certainty " his opinion, called for by the second, as to the continuance of the condition of the spine “in the ordinary and natural course of nature." This was substantially the language used in the Strohm Case, and the questions objected to were competent under that and the later cases. Turner . City of Newburgh, 109 N. Y. 301, 309, 16 N. E. Rep. 344; Griswold v. Railroad Co., 115 N. Y. 61, 63, 21 N. E. Rep. 726.

After considering all the other exceptions properly before us, we find none calling for a reversal of the judgment, which should therefore be affirmed. All concur, except Gray and Haight, JJ., dissenting.

Judgment affirmed.

STALEY V. MAYOR, ETC., OF THE CITY OF
NEW YORK.

Supreme Court, New York, Appellate Division, First Department, February, 1899.

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MUNICIPAL CORPORATIONS — DUTY TO REMOVE SNOW AND ICE FROM CROSSING. It is not negligence for a municipal corporation to permit a street crossing to remain incumbered with ice and snow that was practically impossible to remove because of its frozen condition, and that had become so immediately after the fall of snow four days before the accident to the plaintiff.

APPEAL from judgment, Supreme Court, New York County, in favor of plaintiff.

THEODORE CONNOLY, for appellant.

EDWARD SWANN, for respondent.

RUMSEY, J. On Sunday afternoon, the 30th day of December, 1894, the plaintiff, while walking down Fifth avenue, on the west side, reached the crossing of Fifty-sixth street. That crossing was covered with ice and snow, packed down and frozen in ridges along

the crossing.

The plaintiff observed the condition of the walk, and sought for a place where she might cross with safety. She stepped carefully off from the curb, but, just as she took the second step from the crossing, her foot slipped upon one of the ridges of ice, and she fell and broke her leg. To recover the damages received by the fall she brought this action. Upon the trial she had a verdict, and a motion for a new trial made by the defendant upon the judges' minutes was denied. After the entry of judgment, this appeal was taken from that judgment and order.

The injury was received between four and five o'clock in the afternoon. It appeared, from the evidence of the plaintiff's witnesses, that during the month of December, down to the 26th, the temperature had been above the freezing point nearly all the time. On the afternoon of the 26th a fall of snow began, which continued until late in the night, when it turned to sleet, and aftewards to rain, which ended about noon of the 27th, when a fall of snow began again, which continued until half past one of that day. The total fall of snow during the 26th and 27th was eight and two-tenth inches. On the 27th, after the snow-fall ended, the thermometer began to fall, so that at some time on that day it descended to sixteen degrees above zero, the mean temperature on that day being about twentyeight degrees. The thermometer continued below freezing from the 27th down to the 31st, and there was no time during those days when the snow which fell on the 27th was not frozen to the sidewalks and streets. The plaintiff met with her accident on the crossing of the roadway of Fifty-sixth street. There was no loose snow there, but the crossing was covered, as has been stated, with frozen snow and ice, so that it was slippery. No claim is made by the appellant that the plaintiff was guilty of any contributory negligence in attempting to go over the crosswalk as she did, but a reversal is claimed solely upon the ground that the city was not guilty of negligence in permitting the crossing at Fifty-sixth street, upon which the plaintiff fell, to be incumbered with snow and ice, while the temperature was so low that the coating adhered to the pavement, and could not conveniently be removed. We think this contention is well founded. It is not necessary to consider precisely what duty is imposed upon a municipal corporation by way of keeping the street crossings in a safe condition for pedestrians who have occasion to use them. It is certainly no greater than the duty imposed upon them with reference to sidewalks. As to them, the municipality is bound only to use reasonable care to keep them in a safe condition. It often happens that a fall of rain is suddenly followed by severe cold, by reason of which the snow or ice is frozen to the

sidewalk, so that it is practically impossible to remove it until a thaw has come. In such case, the rule is that the municipality is not negligent in awaiting the thaw. The emergency is one which is common to every street in the city, and which the corporation is powerless to remove, and the municipality may await, without negligence, a change of temperature, which will remove the danger. Taylor v. City of Yonkers, 105 N. Y. 209, 11 N. E. Rep. 642. The rule laid down in the case cited has since that time been invariably followed in the courts. The case at bar is controlled by the principle there established; and, applying that principle, we are quite clear that the city was not guilty of any negligence by reason of the facts made to appear by the plaintiff's witnesses.

It was erroneous, therefore, to refuse to dismiss the complaint because the defendant was not shown to have been guilty of negligence. For this error the judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event of the action. All concur.

QUINN v. PIETRO.

Supreme Court, New York, Appellate Division, Second Department, March, 1899.

COLLISION OF WAGON WITH BICYCLE

DEATH OF BICYCLIST. Where it appeared that a boy sixteen years of age riding a bicycle kept to the right of the highway, and the defendant, instead of keeping to the right of the middle of the road, changed his course to the side where the boy was who in vain endeavored to avoid a collision by going nearer to the curb, and was knocked off his bicycle by the pole of the wagon and run over and fatally injured, his death was due to the gross negligence of the defendant. EVIDENCE-DECLARATIONS OF DRIVER OF WAGON. - Evidence that the defendant after he was arrested swore at the bicycle and said they were no good was properly admitted as tending to show his hostility to bicycles in general, and indifference to the rider's rights in particular.

VERDICT.

- A verdict for $2,000 for the death of a boy sixteen years of age was not excessive.

APPEAL from judgment, Supreme Court, Trial Term, Kings County, in favor of plaintiff.

A. F. VAN THUN, JR., for appellant.

JAMES D. BELL, for respondent.

WILLARD BARTLETT, J. The plaintiff's intestate, a lad sixteen years old, while riding a bicycle on Eastern Parkway, in Brooklyn,