#### Clifford E. Meade, Appellant, *v.*Benjamin Goldman, Respondent.

Second Department,

June 2, 1911.

Negligence highway — fall of box from truck — proximate cause — evidence — necessity for medical attendance.

Where in an action .to recover for personal injuries caused by the fall of a box from the end of defendant’s truck, it appears that as the truck was turning a corner it ran into a hole in the pavement one and a half by ten feet and about six inches deep, with such force that it stopped the truck, displaced one of the rungs which held the boxes in place so that one of them fell off and almost threw the driver into the street, a judgment for defendant will be reversed.

The negligent driving and not the hole in the pavement was the proximate cause of plaintiff’s injury.

Testimony by plaintiff as to the amount paid for drugs and medical attendance is incompetent in the absence of evidence of the necessity for such expenditures.

Appeal by the plaintiff, Clifford E. Meade, from a judgment o of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the Jth day of February, 1911. -

*Lawrence W. Trowbridge,*for the appellant.

*Arthur Weil,*for the respondent.

Thomas, J.:

Plaintiff and another were walking southerly on West street in the city of New York when a large and heavy box fell *510from the end of a truck that had turned from West street and entered Duane street, and injured the plaintiff. The court’s finding that the defendant was not negligent was probably based upon the evidence that the cases were secured by a rope and by three rungs ¡on the end of the truck, and that a hole in the' street so jarred the truck as to displace the rung and allow the case to fall. The hole was á foot and a half wide, about half of a foot deep and ten feet long, as the driver states, and the truck entered it with such force as to displace the rung and carry it “ away in on the floor of the truck,” to stop the truck instantly, turn the horses around somewhat, and almost throw the driver from the truck. The driver testified: “As I swung into Duane street I heard a terrible jar, and I stopped and looked. ,3⁄8 -3⁄8 3⁄8 I felt the jar.” The driver-seems to have been so inattentive that he did-not see the hole previous to the terrible , jar, and although he . states that his horses were walking slowly, the management of them was such that the truck w’as allowed to jounce into the hole in such manner as to produce serious consequences to it and resulting injury to the pedestrian. Reasonably careful driving is not indicated by this history, and the .finding exculpating the defendant is.not supported by the evidence. The negligent driving, and not the hole, was the proximate, cause. The, plaintiff was injured to some extent, and while his testimony of payments to the doctor aind the apothecary was incompetent in absence of evidence of the necessity of the drugs and services, there was proof of some damage.

The judgment should ¡ be reversed and a new trial ordered, costs to abide the event. . • ■

Jenks, P. J., Carr, Woodward and- Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.