McNaier v. Manhattan Railway Co. — 22 N.Y. St. Rep. 840

Majority

p. 840

Tyler McNaier, Resp’t, v. The Manhattan Railway Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

1. Negligence—Action for personal injuries—Evidence—Use of

SKULL TO EXPLAIN INJURIES.

In an action for damages for injuries to plaintiff’s eye caused by being struck with a piece of hot coal or clinker from an engine belonging to defendant, an objection to the use of a skull to explain to the jury the nature of the plaintiff’s injuries is not well taken.

3. Same—Evidence—Exhibition of surgical instruments.

Nor is an objection to the exhibition of the surgical instruments, by which the operation was performed, valid.

p. 841

3. Same—Examination op plaintiff in presence of jury.

An examination of the plaintiff in the presence of the jury to see if pus continued to exude from the wound is not objectionable.

4. Same—Cost of surgical services rendered.

Nor was it error to allow a surgeon to testify to the value of his services where the complaint averred that the plaintiff was put to expense for surgical aid. It is not necessary that the amount should be in fact paid, to enable plaintiff to recover; it is sufficient that he is liable to pay.

5. Same—Railroad company—Instructions to jury—Care taken to

AVOID ACCIDENTS.

The court charged that “ it was the duty of this railroad company * * * to construct its engines, * * * its smoke stacks * * * and its ash pans, and to guard them properly so as to reduce the probability of accidents and injuries to others to the least possible practical minimum point.” Held, not error.

Appeal . from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial on the minutes.

The action is to recover damages for personal injuries sustained by the plaintiff, caused by the negligence of the defendant. The plaintiff, while walking along Sixth avenue in the city of New York was struck over his right eye with a piece of hot coal or clinker from an engine belonging to the defendant. The court, in its charge to the jury, said, “it was the duty of this railroad-company to . use proper ca.re to employ persons possessing the requisite amount of skill, the requisite knowledge, a requisite experience to construct its engines and all parts of them, to construct its smoke stacks and its ash pans, and to guard them properly so as to reduce the probability of accidents and injuries to others to the least possible practical minimum point.”

Davies & Rapallo, for app’lt; Joseph S. Wood, for resp’t.

—The objection of defendants to the use of a skull to explain to the jury the nature of plaintiff’s injuries is not well taken. Nor was the objection to the exhibition of the surgical instruments, by which the operation was performed, valid. The examination of the plaintiff in presence of the jury to see if pus still continued to exude from the wound was not objectionable.

The object of a trial being to acquaint the jury with the truth of the case, it is not perceived how any of these means useful for that purpose could injure the appellant.

To suppose that thq sight of a skull and the instruments used as they were to explain the injury and the operation necessary to'relieve it should have “inflamed the passions of the jury,” is quite unreasonable.

p. 842

Their use was a matter in the discretion of the circuit judge which was wisely exercised.

Nor was it error to allow the surgeon to testify to the value of his services. The complaint avers that plaintiff was put to expense for surgical aid, and it is not necessary that the amount should be in fact paid, to enable the plaintiff to recover. It is sufficient that he is liable to pay.

The motion to dismiss the complaint. presents the same questions as upon the former appeal, and do not require a renewed discussion. The jury could have had little difficulty in deciding that the hot coal came from the defendant’s engine, and the testimony of desendant’s witnesses showed that such an event would not have occurred had proper skill and diligence been used.

The charge of the court was more favorable to defendants in the degree of care required than has been the case in many instances. A severer rule has frequently been approved upon appeal.

No error appears, and the judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.