Werner v. Brooklyn Elevated Railroad — 11 A.D. 86

Majority

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Andreas Werner, as Administrator, etc., of Franciska Werner, Deceased, Respondent, v. Brooklyn Elevated Railroad Company, Appellant.

Headnote

Segligence—cross-examination of an expert — measure of damages.

In. an action in which a railroad corporation is charged with negligence, an expert witness for the defendant who has described the proper construction of locomotive engines used by such railroads, and has stated that, in his opinion, there were no better appliances in general use than those which he had described to the jury, may be asked, upon his cross-examination, whether a locomotive properly constructed, kept in good condition, and carefully used, could emit from the smokestack or ash pan ashes or cinders of the size of an inch and a half; and his answer, that such a result would indicate carelessness, is competent evidence for the plaintiff.

A verdict for §3,750 as damages sustained by reason of the death of a girl fourteen years of age, is not so excessive as to justify the appellate court in setting it aside.

Appeal by the defendant, the Brooklyn Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of May, 1896, upon the verdict of a jury rendered after a.

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trial at a Trial Term, of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office on tiie 11th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes.

The action was brought to recover for injuries sustained by a girl of fourteen years of age, which resulted in her death.

R. Percy Chittenden, for the appellant.

William J. Carr, for the respondent.

This action was brought by the father and administrator of Franciska Werner, deceased, to recover $5,000 damages alleged to have been sustained by him as her only next of kin, by reason of the negligence of the defendant in causing her death on the 10th day of June, 1891.

The complaint alleged, and the evidence amply justified the jury in finding, that while the plaintiff’s intestate was lawfully walking on Crescent street, a public highway in the city of Brooklyn, and while passing under the defendant’s elevated railway structure, a quantity of live coals dropped therefrom upon the girl’s clothing, set fire to the same, and so burned and shocked her that she died on the following day. It was further alleged that said live coals fell from a locomotive then and there in the use of the defendant, which was defective in appliances to prevent the escape of fire, and was operated carelessly and negligently by the defendant in such manner as to allow the escape therefrom of burning matter. This allegation also found abundant support in the proof.

The plaintiff recovered a verdict of $3,750.

Only two points are presented for our consideration by the brief of the learned counsel for the appellant.

George II. .Morrison, the engine dispatcher for the Manhattan Elevated Railroad Company in New York city, was called as a witness for the defendant, and, upon his cross-examination, was asked : “ Now, would you say that a locomotive on an elevated railroad structure, properly constructed, kept in good condition and carefully used, could emit from the smoke-stack or ash-pan, ashes or cinders of the size of an inch and a half ? ” An objection to this question was

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overruled; the defendant excepted, and the witness answered: “No. If such a piece of fire, coal, ash or cinder, of a size about one and a half inches, should be emitted, I should say it was carelessness.”

In the first point on the appellant’s brief it is argued that the trial court erred in overruling the objection to the question thus put to Mr. Morrison, and reference is made to the much-cited case of Van Wycklen v. City of Brooklyn ( 118 N. Y. 424 ). We find nothing in that decision, however, which tends to show that it was error to allow the question now under consideration. Mr. Morrison had been called by the defendant to testify as an expert to the usual and proper construction of locomotive engines in general use on elevated railroads. He had described the damper, and had expressed the opinion that it was impossible for it to open, in consequence of vibration, so as to allow any ashes whatever to fall out. He had also expressed the further opinion that there were no better appliances in general use than those which he had described to the jury. After this, on cross-examination, it was entirely proper to test the mechanical knowledge of the witness, and the character and confidence of his opinions, by such a question as that which is now criticised in behalf of the appellant. The answer went further than the inquiry, and the defendant might have been entitled to have all that the witness said in addition to the simple negative stricken out upon motion, but no such application was made to the court.

The second point is that the verdict was excessive. As to this, it is only necessary to say that we do not think it is so large as to justify any interference by this court on that ground.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.

Cases cited

Van Wycklen v. City of Brooklyn 118 N. Y. 424 N.Y. 1890-02-25 p. 88