Carley v. New York, Ontario & Western Railway Co. — 16 N.Y. St. Rep. 307

Majority

p. 307

Maria Carley, Resp’t, v. The New York, Ontario and Western Railway Company, App’lt.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. Appeals—Error in admission of evidence when disregarded — Code Civ. Pro., § 1003.

Where the appellate court is satisfied that the verdict would have been the same if the error had not been committed in the admission of the evi

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dence, the court will not disturb the verdict, under the authority oí Code Civil Procedure, section 1003. Distinguishing Erben v. Lorillwrd, 19 R. Y., 299; ArtTier v. Griswold, 55 id., 400.

8. Evidence—Competency of expert—Whennot tobe assailed by the OPINION OF ANOTHER WITNESS.

The competency of an expert is usually proved by himself, and the opinion of another witness that he does not know anything about kindred subjects is incompetent.

Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury upon trial at the Sullivan circuit, also from the order denying motion for new trial made upon the minutes.

The action was to recover damages for burning plaintiff’s woodlands alleged to have been set on fire by the sparks from defendant’s locomotive.

George H. Carpenter, for app’lt; W. F. O’Neill, for resp’t.

The facts in this case are substantially the same as in O’Neill against this defendant (10 N. Y. State Rep., 147).

The damages now sought to be recovered were caused by the same fire. We follow the decision made in that case, that the verdict is warranted by the evidence.

The witness Gray was asked: “Were the regular spark arresters used upon the West Shore road at that time ?”

The appellant objected as assuming a fact not proved, as immaterial, and that the witness was not shown to be an expert. This objection was overruled, and the witness answered, yes. He was next asked, “Were the spark arresters used on the West Shore road an improved method over the netting used on this road for arresting and confining sparks 2” This was objected to upon the same grounds as above and the objection overruled. The witness answered, yes. The evidence was material. As to the competency of the witness as an expert, he testified: “ I am yardmaster, or foreman, in the shops of defendant, and was in April and May, 1884 (about the time of the fire). It was a part of my duty to examine all engines arriving and departing from the engine house. It was my duty to examine the smoke stack’s spark arresters and ash-pans. I examined the smoke stack’s spark arresters and ash-pans of all engines that came into the round house.”

We think the court was justified in holding that he was an expert with respect to spark arresters. The objection that a fact was assumed not proved, namely, the existence of regular spark arresters, simply went to the order of proof. Whether the existence of that appliance was not well known and needed proof, or was so well known as to he naturally assumed as of course, was a matter as to which the trial judge could best decide. At a subsequent

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stage of the trial the kind of spark arresters used upon the West Shore road was fully described by a witness on the part of the defense.

We do not think any error was committed in this respect. Assuming that the witness was an expert, we think it was competent for him to give his opinion with reference to the comparative merits of the spark arresters used upon the two roads. The plaintiff had the right to show, if she could, that the appliance used by the defendant was not a reasonably safe and suitable appliance, and to that end evidence that better appliances were in common use upon another road in the same vicinity was competent.

Other testimony was given respecting the spark arrester, and the court finally, at the request of the defendant, instructed the jury, that “the proof shows that the spark arrester used by the defendant is of the most approved kind known.”

We must assume, therefore, that the error, if any, in receiving the testimony of Gray was cured. The defendant failed upon the ground that it was negligent in leaving so much combustible rubbish near plaintiff’s property on its road, hable to be ignited by the sparks emitted from its engines. It is true there are cases in which the courts have held that where erroneous evidence has been once received, under exception, the error is not cured by the instruction to the jury to disregard it. Erben v. Lorillard, 19 N. Y., 299 ; Arthurs v. Griswold, 55 id., 400 . But these are cases in which it was plain that the erroneous evidence produced an erroneous verdict.

We are satisfied that the verdict would have been the same if this evidence had not been offered, and we are instructed by the Code not to disturb it. Section 1003.

The court sustained the objection to the question asked by the defendant of its witness Minshull, “Did Mr. Gray know anything about an engine or handling one ? ’ ’ The object of this question was to prove Gray’s incompetency as an expert upon the subject of spark arresters. Usually a witnesses’ competency is proved by himself, and the opinion of another witness that he does not know anything about kindred subjects is plainly incompetent.

The objection to the question calling for the discussion by the convention of master mechanics of the subject of spark arresters was properly sustained.

The judgment and order must be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.