Schuhle v. Cunningham — 13 N.Y. St. Rep. 81

Majority

p. 81

Theodore Schuhle, App’lt, v. Daniel Cunningham. Resp’t.

(New York Common Pleas,

Filed January 3, 1888.)

Headnote

1. Evidence—Hearsay may be stricken out.

If upon cross-examination it appears that testimony given upon the examination in chief was hearsay, the court may, if it deems it best, strike out such testimony instead of allowing it to stand and instructing the jury to disregard it.

p. 82

3. Damages—Must be assessed by jury.

Damages for the loss of services cannot be proved by opinion evidence, but must be assessed by the jury.

3. Instructions to jury—Requests to deliver—Time for may be limited.

Although it is the right of counsel to present requests for the court to instruct the jury on questions of law and the duty of the court to pass upon them, it may, after a full and fair opportunity has been afforded, refuse to receive requests the presentation of which-has been unnecessarily delayed.

I. L. Bamberger, for app’lt; A. & M. Wilcox, for resp’t.

Most of the exceptions that were taken at. the trial may be disposed of without discussion, as it is obvious that they are not tenable. For instance, it is plain that where it appears upon cross-examination that the testimony given in chief was merely hearsay, the court may, if it deems that course best, strike out the testimony; it is not always the wisest policy to allow the testimony to stand and instruct the jury to disregard it. Stokes v. Johnson, 57 N. Y., 673 ; Farmers’ Bank v. Cowan, 2 Abb. Ct. App. Dec., 90 ; Platner v. Platner, 78 N. Y., 102 .

So also, it is plain that the court properly overruled the question put to the plaintiff, who was suing for the loss of his wife’s services: What, in your opinion, are the services of your wife worth to you ? The jury, not the plaintiff, was to set a value on those services. It was the duty of the plaintiff to prove what his wife did or could do before the alleged injury, and what she did or could do after she had been injured. With these data the jury might, perhaps, without other facts, estimate what compensation the plaintiff should receive. Damages cannot be proved by what is called “opinion evidence;” they must be assessed' by the jury. - To aid the jury, experts may testify as to market value, but the value of a wife’s services to her husband is not susceptible of proof by the opinion that the-husband may express concerning them.

It is perfectly proper to exclude the question as to the manner in which the pole was set in the ground after it had fallen and injured the wife of the plaintiff. Ordinarily negligence cannot be shown by proof of what occurred after the happening of an accident. ( 56 N. Y., 1 -8.)

There are cases in which an injury is caused through the disrepair of an article, and in such cases the fact that repairs have been made directly after'the accident is regarded as proof that the article was out of repair when the injury occured. Dale v. Del., L. and W. R. R., 73 N. Y., 472 .

To prove that a pole, which was designed to be for che permanent use of the tenants of the house, was re-erected after it had fallen down, did not tend to prove negligence in

p. 83

the original setting of it, nor could an inference fairly be drawn that the original setting was negligent from the fact that the defendant, when resetting it, determined to increase the depth of the hole in which it was to be sunk. That the pole was negligently set at the time of the accident, was not to be proved by testimony that the defendant displayed excessive caution in resetting.

We think that there was no abuse of power in the course taken by the judge with respect to' the last request for instructions that the plaintiff presented. The plaintiff had already handed up certain written requests for instructions, and these the court had passed upon. After the jury had been charged at length, and when they were about to retire, the plaintiff orally asked the judge to give another instruction to the jury. The judge said: “All your requests to charge should'have been submitted in writing before the summing up.”

This observation was eminently proper. Abundant opportunity to present instructions had been given. The plaintiff had availed himself of it and submitted a number of requests. It was not at all strange that under these circumstances the court expressed the opinion that all the requests should have been presented together, and in time to enable the court to examine them. There must be a time at which the presentation of requests should cease, else we should find that after the jury had retired, requests to charge would be made, sometimes to the serious inconvenience of the court, and of counsel in another suit the trial of which has, been begun. See Maurer v. People, 43 N. Y., 1 ; Code C. P., § 992.

We do not question the right of a counsel to present requests, or the duty of the court to pass upon them, but it is essential to the orderly conduct of a trial that the court should have the power to put an end to the presentation, of requests to charge, as it may put an end to a cross-examination unreasonably spun out. In Chapman v. McCormack ( 86 N. Y., 480 ), no opportunity at all was given to counsel to present their requests, and the refusal of the trial judge to allow counsel to state the propositions of law which .they believed to be applicable to the facts, was adjudged by the court of appeals to be ground for the reversal of the judgment. But when a full and fair opportunity has been afforded to counsel to submit their requests for instructions, a very clear case of abuse of discretion must be made out to call for any interference with the refusal of the trial judge to receive other requests the presentation of which has been unnecessarily delayed.

Some exceptions were taken to the rejection of testimony that was offered to show the severity of the woman’s in

p. 84

juries, but in the view that we take of the case it is not necessary to examine them in detail, because the verdict leaves no room for doubt that the jury found that the woman was not injured through the negligence of the defendant. The controlling question in the case was, not whether she had been badly crippled, and was very infirm of body, but whether the ailments that she suffered from were caused by the falling of a pole negligently placed by the defendant in the yard. The court instructed the jury that they must find for the plaintiff if they believed that she was injured by “ the falling of the pole, and if her injuries were due to the defendant’s negligence, and she herself did not by her own negligence help to bring about the accident that caused the injury.”

Under this charge of the court the jury found for the defendant. The verdict may have been founded on any one of these three conclusions: First, that the pole did not fall upon the woman; or, secondly, if it did fall, it was not through the defendant’s negligence; or, thirdly, that conceding that the pole fell in consequence of the defendant’s negligence, yet the woman by neglect on her own part brought about the accident.

Whichever of these three conclusions was arrived at, it is evident that it rendered an assessment of damages unnecessary; and an erroneous ruling that bore merely upon the question of damages, could not possibly have changed the result. The court further said: “If Mrs. Schuhle were injured by the falling of the pole, etc., you will approach the consideration of the extent of her injuries, and the amount of damages.

The plaintiff is entitled to a fair compensation for the loss of his wife’s services, and the moneys expended for her care and treatment. You may consider whether the injuries which you find were sustained are likely to be permanent.

There was in the case, evidence that the woman had been sick, that the plaintiff had been deprived of her services for a long time, and that he had expended a considerable sum for nursing her, and for medical attendance upon her.

These damages the plaintiff must have recovered under the charge of the court, if the jury had believed that the' woman had been injured by the falling of the pole. The main contest in the case was, as the testimony discloses, over this question: Did the pole when it fell strike the woman at all ? The jury found that it did ' not, and the verdict was' well supported by the evidence.

We are of opinion, therefore, that the judgment and order appealed from, should be affirmed, with costs.