#### Anna M. Miehlke, Respondent, *v.*The Nassau Electric Railroad Company, Appellant, Impleaded with The Coney Island and Brooklyn Railroad Company, Defendant.

Second Department,

December 30, 1908.

Negligence — prior physical condition of plaintiff — dam ages — evidence — expert testimony — trial — charge.

A passenger injured by the negligence of a railroad company need not have been physically sound in order to recover lor injury actually sustained.

Thus where a woman suffering from uterine troubles was injured in the vicinity of an ovary which it was afterwards necessary to remove, she may recover if the evidence justified a finding that the injuries received in the accident necessitated the operation and that there was no other adequate cause for such result.

Where the jury may properly find facts from the evidence, they may be assumed in a hypothetical question put to an expert.

The court having properly charged the law as to defendant’s liability for the • injuries, taking into consideration plaintiff’s alleged diseases prior to the accident, it was not error to refuse to charge that plaintiff cannot recover for the aggravation of any abnormal condition existing in the ovary, where she claims none existed there before the accident.

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff against the said defendant, entered in the office of the clerk of the county of Kings on the 28th day of April, T908, upon the verdict of a jury for $6,250, and also from an order entered in said clerk’s office on the 28th day of May, 1908, denying the said defendant’s motion for a new trial made upon the minutes.

*D. A. Marsh [George D. Yeomans*with him on the brief], for the appellant.

*Frank W. Holmes [George A. Logan*with him on the brief], for the respondent.

Woodward, J.:

The plaintiff, while a passenger on one of the cars of the Coney Island and Brooklyn Railroad Company, was injured by one of the *439cars of the defendant, The Nassau Electric Railroad Company, running into the car in which she was riding at a grade crossing. The jury has found the defendant guilty of the negligence resulting in the injury, and the questions presented upon this appeal relate to the question of damages, it being claimed on the part of the defendant that there were errors in receiving evidence, and that the plaintiff has failed to establish that her injuries were solely the result of the accident.

The plaintiff was a married woman, and it appeared from the evidence that she had been under treatment for some time for uterine troubles, and the defendant insists that the evidence fails to show that the subsequent injuries, which centered in her right side in the vicinity of the right Ovary, which was afterwards removed, were the sole cause of this necessary removal.' We have examined the record with care, and we are persuaded that there was evidence in the case which justified the jury in finding that the injuries received were such as to necessitate the two surgical operations which were performed upon her, and that there was no other competent cause for this result. The evidence, when fairly read, simply shows that the plaintiff had a difficulty very common among women, not at all serious in its nature, and while the testimony of the doctors on cross-examination did admit that the condition which existed prior to the accident might under some circumstances warrant a surgical operation, we do not find anything in the record to indicate that this woman would have been under any such necessity except for the accident which befell her through the negligence of the defendant. A passenger is not bound to be physically sound; a woman is not bound to be free from all complications in order to recover for injuries which she actually sustains. While the defendant cannot be held liable for the condition in which she was at the time of the accident, it is liable for any injury which it negligently inflicts upon her, even though that injury would have been less disastrous if she had been in perfect condition at the time of the accident.

It is urged that the court erred in permitting one of the physicians to answer a hypothetical question, involving his opinion, that the accident was a competent cause of plaintiff’s condition, and that the exception presents reversible error. Dr. Krug was asked a *440hypothetical question, which involved the assumption that when he had examined the plaintiff, soon after the accident, he found a swelling of the uterus and the surrounding tissues, and that this condition continued down to the twenty-first day of February, and that the plaintiff, who had been under treatment for a soreness in her right" side, prior to the accident, had entirely recovered from such soreness at the time of the examination on the twelfth day of February. While the evidence is not, perhaps, as clear and direct as it might be desirable to have it, we are of the opinion that the jury might have properly found the facts as claimed by the plaintiff in the hypothetical question, and it was, therefore, within the well-established rule in reference to this line of questions.

We have examined the charge and the request to charge, which was refused, and we are persuaded that no reversible error was committed by the learned trial court. The court had fairly charged the law as to the responsibility of the defendant for the plaintiff’s condition, taking into consideration her alleged diseases prior to the accident, and no exception was taken to this part of the charge. Defendant’s counsel then asked the court to charge *“*that in this case there can be no *recovery*for an aggravation of any condition existing in the ovary, since the plaintiff has claimed no condition abnormal existing in it before, and there is no evidence that it was aggravated.” To this request the court responded : “ If you will concede that there was no abnormal condition before, I will charge that, but in the face of your contention to the contrary I will leave • that to the jury, as I have done in the charge.” Counsel then stated: “ I do not want to be misunderstood about that. That is the plaintiff’s position, that there was no abnormal condition before, and that being her position she cannot recover for an aggravation of what she claims did not exist before.” The court responded: *“*I will leave my charge upon that point as it was, with the qualification that I made.” Counsel for defendant then merely took an exception, though, whether to the refusal, to charge as requested, or to the charge as originally made is not very clear. At any rate we are of the opinion that the charge as originally made stated the law clearly to the jury, and that the defendant was not entitled to the charge as requested.

*441We are not convinced that the verdict is so far excessive as to warrant this court in reversing the judgment.

The judgment and order appealed from should be affirmed, with costs.

Present — Woodward, Jenks, Hooker, Gaynor and Miller, JJ.

Judgment and order unanimously affirmed, with costs.