#### Alice M. Allan, Resp’t, *v.*The State Steamship Company, Limited, App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

1. Negligence—Steamship companies—Medicines.

Plaintiff, as passenger on defendant’s steamer, on the second day out applied to the ship’s doctor for some quinine and was given calomel instead, which caused sickness and permanent injury. There was evidence to show that the medicines were kept in a dark room and the place was in utter confusion and the bottles appeared to be out of place, and that the doctor had made mistakes in medicines given to others. *Reid,*sufficient to show negligence on the part of the company; that whether boun,d by statute or contract to furnish the medicines, it was bound to keep them arranged so that a physician of ordinary skill could select them when asked for.

2. Same—Damages.

Where plaintiff lost some teeth, was obliged to have two pieces of jaw bone removed, and her health was permanently injured by reason of the mistake of the doctor, a verdict of $13,000 is not excessive.

Appeal from judgment for $13,411.25, entered on verdict in favor of plaintiff.

The facts appear in the opinion.

*Charles M. t)a Costa*and *William D. Guthrie,*for app’lt; *M. L. Towns,*for resp’t

Barnard, P. J.

The plaintiff, a healthy young woman, took passage upon defendant’s steamer from Glasgow, Scotland, to New York. The voyage commenced on the 26th of August, 1887. The next morning the ship stopped at Lome, Ireland, when the plaintiff and her mother went ashore. The ship left Lome on the 27th of August, 1887, and soon after the ship started the plaintiff, feeling symptoms of a cold, applied, through the stewardess, for some quinine from the medicine supply kept by the defendant and given *gratis*to passengers as a part of the contract of passage. ' The medicines were under the charge of a doctor employed by the defendant The medicine given was not quinine, but one which occasioned extreme results both in suffering to the plaintiff and in permanent injuries of a most serious character.

There was neglect in some one by which these results were produced. The plaintiff gives evidence tending .to show that the ship’s doctor was, some days subsequently to the giving of the medicine, seen intoxicated. This evidence was objected to and received, but upon her proof of the whole case the judge charged the jury that the plaintiff could not recover for neglect of the doctor from any cause.

If the error in receiving the evidence of the intoxication of the doctor could not be cured, the trial of cases will' be made veiy *289difficult. Evidence is received on a ground of action which, fails .and the case is permitted to proceed on a theory which prevails under the proof.

The case should be considered on appeal as if the evidence of intoxication of the physician had been rejected. The case then is one of neglect against the company. Whether the defendant was bound by English or American statute to provide the medicines, or provide them at its own instance, the rule would be the same. Their arrangement must be such that a physician of ordinary skill can select them when asked for. The case against the defendant is made out by the testimony of one Chester. He applied for medicine in the same way it was furnished the plaintiff. The room was “very dark;” bottles of all sizes stood around in all shapes and in all positions ; some bottles were in racks, and some were resting on the racks; the place was in utter confusion. The bottles looked as if out of place. The doctor seemed confused, and hesitated in giving the medicine asked for, and at last gave the wrong medicine to Chester, which burned his lips severely, instead of an innocent one which he asked for. The bottles in some instances were in the racks which did not fit the bottles. Whether the bottles were opaque or transparent is disputed. The sample bottles were not returned, but were before the jury. If these facts are true, the company failed to furnish either a proper place for the medicine or a proper arrangement which would enable the physician to give the right medicines without confusion to himself or danger to the sick

This condition was within a day of the beginning of the voyage, and indicates a faulty beginning, and not a disarrangement afterwards by the doctor. The case was tried upon the theory that the mistake was in the giving of calomel instead of quinine, and samples of these bottles were before the jury, and are returned in the case so far as respects the labels. The calomel bottle is the smaller bottle, and has the word poison on it, but so low as to conceal the word when it was in the rack The letters in the label are entirely insufficient to guard against mistakes in a dark room at night It is not certain that the calomel bottle was labeled poison on the night in question. Assuming negligence, there is no question made as to an excessiveness of the verdict. The verdict of the jury has sufficient evidence to support it, and, therefore, the judgment should be affirmed, with costs.

Dtkman, J., concurs.