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Smith v. Nassau Electric Railroad

57 A.D. 152 Court N.Y. App. Div. English

Delivered by Jenks, J.:

Contents

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p. 152
Martin A. Smith, Respondent, v. Nassau Electric Railroad Company, Appellant.

Headnote

,Review of rulings not excepted to — when a denial of a motion to strike out evidence• 1 is not error—remedy by instruction to the jury—when a ver diet is not excessive.
The Appellate Division will review erroneous rulings where no exceptions are-taken thereto, only where grave injustice has been done, which cannot otherwise.be corrected.
Where an objection is taken to a question and, is overruled, and no exception is-taken, and the objecting counsel afterwards moves to strike out the testimony, and takes an.exception to the denial of such motion, the refusal of the court to-strike out the testimony is not error. The remedy of the counsel in such case, is to ask for an instruction to the jury that it disregard- the evidence.
A verdict for $1,054, recovered by a farmer, who, while boarding an open railroad car in the spring of the year, was struck upon the head by a bar of wood,, became senseless and ill, suffered great pain and dizziness, attended with nausea,, the pain continuing throughout the summer, so that he could not go out in the sun without suffering, and was forced to carry a sunshade into the fields-when'superintending his men, being unable to' work himself, which pain and ■ inability continued in a lesser degree during the next summer, is not excessive.
p. 153
Appeal by the defendant, the Nassau Electric 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- 15th day of June, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.
John L. Wells, for the appellant
Philip Carpenter, for the respondent.

This is an appeal from judgment entered on a verdict for $1,054, recovered by the plaintiff in his action for damages for personal injuries resulting from the negligence of the defendant, and from an order denying a new trial on the minutes. The appellant challenges the amount of the verdict as excessive, and a ruling of the learned trial justice upon the evidence as erroneous.

Mrs. Judge, not a physician, called by the plaintiff, was asked by plaintiff’s counsel: “ Q. You say he was a bright,-sharp man before this accident ? * * * Objected to as leading, and a conclusion of the witness.” No exception appears on the record. After an answer was made, followed by two further questions by the court to elicit the judgment of the witness upon the plaintiff’s quickness or slowness of apprehension, both before and after the accident, which were answered by the witness, the learned counsel moved to strike out all of this matter, on the ground that it was merely the imaginary conclusion of the witness, and that it was incompetent and irrelevant. This the court virtually refused to do, and thereupon the counsel excepted. No exception was taken to the ruling upon the objection interposed to the question, which ruling, was, in effect, that such objection was not well taken, inasmuch as the witness was permitted to answer; An exception is “ a protest against the ruling of the court upon a question of law. * * * It is designed as a warning for the protection of the court, so that it may reconsider its action, and for the protection of the opposing counsel, so that he may consent to a reversal of the ruling.” (Sterrett v. Third National Bank of Buffalo, 122 N. Y. 659 .) An objection which, when overruled, is not followed by an

p. 154
exception, serves neither purpose. It may well be deemed by court and opposing counsel that the second thoughts of counsel upon the objection have led him to acquiescence. The court and the opposing counsel may proceed without second thought by the court on the soundness of the ruling, or without consideration by the counsel of the policy of a consent to a reversal of the ruling. I think that the ■ objection without exception does not warrant a review of the ruling in question. (Duckwitz v. Fuller, 7 App. Div. 372 ; Borley v. Wheeler & Wilson Mfg. Co., 34 N. Y. St. Repr. 987 , citing Briggs v. Waldron, 83 N. Y. 582 ; Abbey v. Ferris, 31 N. Y. St. Repr. 59 .) While undoubtedly this court has power to review erroneous rulings without exceptions thereto, yet the power will be exercised only where grave injustice has been done, which cannot otherwise be corrected. (McMurray v. Gage, 19 App. Div. 505 , 508.) So far as the protest of the learned counsel was expressed by his exception to the denial of the motion to strike out, suffice it to say that the refusal of the court was not error; his remedy was to ask an instruction to the jury to disregard it. (Holmes v. Moffat, 129 N. Y. 159 .)

In June, 1898,. as the plaintiff was boarding an open car of the defendant, a guard bar of wood, four inches wide, an inch thick and about sixteen feet long, fell upon his head. He became senseless and ill and suffered great pain and dizziness, attended with nausea and vomiting. He suffered from pain in the head throughout the summer of 1898, and could not go out in the sun except with the penalty of violent pain and dizziness. He was a farmer, and was forced to carry a .sunshade into the fields when he superintended his men, though he could not work himself. He testifies that he suffered . like pain and discomfort and inability in the summer of 1899, but in a lesser degree. Testimony other than that objected to was given that tended to establish that his mental processes are not as quick -and active as they were previous to the accident. I am not prepared to say that the verdict was so excessive as to call for the interference • of this court.

The judgment and order should be affirmed.

Sewell, J., taking no part.

Judgment and order unanimously affirmed, with costs.

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