Dorsch v. Brooklyn Heights Railroad — 68 A.D. 222

Majority

p. 222

Johanna Dorsch, an Infant, by Frederick Dorsch, her Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.

Headnote

Negligence—injury too girl of nine crossing a city street,.after loolcing both ways mid. seeing a car 170 feet distant — testimony not objected to does not afford a ground for reversal. '

In an action to recover damages for injuries sustained by the plaintiff, a girl nine years old, who was run over by one of the' defendant’s electric cars while attempting to cross a city street, evidence that the plaintiff, when near the gutter and' before attempting to cross the street, looked both ways and observed • that the car which ran over her was then about 170 feet distant, and that, she proceeded at a fast walk, is sufficient .to require the question of contributory negligence to be submitted to the jury.

Semble, that, on an appeal from a j udgment, error cannot be predicated upon the reception upon the trial of alleged, incompetent' evidence;- where the appellant made no objection to the reception of such evidence nór any motion to strike it out, and took no exception to the charge of the trial court in which the court referred to such testimony.

Appeal by the defendant, The Brooklyn Heights 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 oh the 26th day of April, 1901, upon the verdict of a jury for $9,500, and also from an order entered in said clerk’s office on the 4th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

I. B. Oeland and George D. Yeomans, for the appellant.

Stephen O. Baldwin [ William T. Gilbert■ with' him on the brief], for the respondent. .

The plaintiff, a little girl nine years old, was run over by one of the electric cars of the defendant on Central avenue, in the borough of Brooklyn, on August 7, 1900,. and so badly injured that she was compelled to'suffer the amputation of her right leg near the ankle. For this injury the jury awarded her damages in the sum of $9,500.

p. 223

Only two points are presented in the brief on behalf of the appellant: (1) That the plaintiff failed to show her freedom from contributory negligence; and (2) that the tidal court erred in receiving testimony to the effect that the motorman in charge of the car, sometime before reaching the point where the accident occurred, let go of both the handles by means of which the movement of an electric car is regulated, and looked away to a corner upon which a policeman was standing, although the car at that time was running very fast.

(1) We agree with the learned trial judge that the fact testified to by the child herself, that she looked both ways before attempting to cross Central avenue, being herself at that time near the gutter, and that the car was then at the corner of Himrod street, was sufficient evidence of due care on her part under all the circumstances to take the question of contributory negligence to the jury. If her. testimony in this respect was true, the car was then about 110 feet distant, and as she says she proceeeded at a fast walk, it cannot be held as matter of law that she was not justified in supposing that she could cross in safety.

(2) The testimony referred to in the second point for the appellant was that of' Henry Bnrbaek, who at the time of the accident was sitting on the front seat of the open car which ran over the child. That portion of the record relating to the evidence of which the appellant now complains reads as follows : “ Q. Was there anything particularly attracted your attention to the motorman of this car as you went along from Cooper street towards Himrod street ? A. There was. [Objected to as incompetent and immaterial, and too remote from the scene and place of this accident. Objection overruled. Defendant excepts.] He had some conversation with me to begin.with. When he had the conversation with me while I was sitting on the platform. At one place by Gates avenue he let go of both handles, he turned around and looked over to the left of him at the corner where there was a policeman standing. He spoke to me with reference to the policeman. The car was running at that time very fast. He leaned over the dashboard; he leaned over forward and began to spit as if he was vomiting.” .

It is to be observed that the only objection as to which there appears to have been any ruling made by the court or exception

p. 224

taken by the defendant was to the question whether anything particularly attracted the attention of the witness. His statement that the motorman let go of both handles near Gates avenue and turned ■around and looked over toward the corner where the policeman ■stood, was not objected to at all, nor was any motion made to strike ■out that portion of the evidence. It'can hardly be supposed that it was then or at any time during the trial deemed objectionable by ■counsel, for it was distinctly referred to by the learned trial judge" 'in his very careful charge to the jury, and no exception was taken to his remarks on that subject. In stating the facts upon which the "plaintiff relied as evidence of the defendant’s negligence, the judge referred to the evidence that the motorman was inattentive to ■ his ■duty; “ that coming down the track he was neglectful of ■ his car, "* * that he was from time to time leaning over the dash-hoard of the car, spitting, raising something from his stomach, inattentive to the street through which he was passing; that he was from time to time conversing with the man who was on the frqnt «eat; that there were times, or at least one time, when it is claimed he did not have his hand on the brake or the "power handle, one -of the two; that he exhibited neglect as he was going along.-” It is scarcely conceivable that if the learned counsel for the defendant had believed the testimony to this effect to be improper for the •consideration of the jury he would have omitted to except to this ■ portion of the charge.

> ■ The case was tried with most commendable care on the part "of the learned judge who presided at the trial; the proof is suffi-’

■ cient to sustain the verdict, and we think the judgment should be ■affirmed.

All concurred.

Judgment and order unanimously affirmed, with costs.