Cousins v. Third Avenue Railroad — 25 N.Y. St. Rep. 341

Majority

p. 341

Phœbe A. Cousins, Resp’t, v. The Third Avenue Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed June 22, 1889.)

Headnote

1. Negligence—Personal injuries—Finding oe jury.

Where, in an action for damages for personal injuries, there is a conflict of evidence, and the main question is one of credibility, the finding of tne jury will not be disturbed.

2 Same—Evidence—Appeal.

Where evidence is admitted without objection, the question of its competency is not raised on appeal.

Appeal from a judgment entered on the verdict of a jury-

This is an action brought to recover damages for injuries sustained from being thrown down by a rail of one of defendant’s tracks in the city of New York.

The injuries were inflicted by defendant on the 17th day ■ of March, 1884, in the following manner: Plaintiff had.

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crossed the bridge afoot. She emerged from the entrance on the New York side at about the hour of eleven o’clock a. m., and attempted to cross the street opposite the entrance. She waited for a car to pass and then attempted to step over the rail nearest the curb, along which the car had just rolled. She got one foot safely over, and just as she was lifting the other, the rail, which was not fastened, but simply lay loose upon the stringer, was thrown off by workingmen at the other end of it, about thirty feet from plaintiff. The end caught plaintiff’s foot and threw her down across the track, and injured her about the body, and on her knee.

Plaintiff seeks to recover upon the ground that the defendant made the street and its crossing unsafe. That it was negligence not to advise pedestrians who had to cross, of the condition of the track; that it was negligence on the part of the defendant to throw the loose rail off the stringer just as plaintiff was stepping across it without warning her or waiting until she had got across.

The defendant contends that the plaintiff fell on the track of another railroad company, and in a place for which it was not responsible.

Hoadley, Lauterbach & Johnson, for app’lt; M. Ja. Towns, for resp’t.

We see no grounds upon which to interfere with this judgment. The plaintiff’s testimony was believed by the jury. It was sufficient to justify the jurors in finding that plaintiff tripped and fell in consequence of the loose rail which defendants’ own witnesses say they loosed from its place in defendants’ track, acting under defendants’ authority. There was conflict of evidence. Plaintiff was not corroborated by other witnesses, with respect to the precise place where she fell. Others located the spot on other tracks. But assuming the truth of plaintiff’s story that she tripped over the loose rail, the defendants locate it on defendants’ track. There is no suggestion of a loose rail over which she might have tripped at any other place in the vicinity. Hence, the main question was one of credibility of the plaintiff as a witness, and that was clearly for the jury.

We have looked, also, at the exceptions, and taking the whole charge together, we find no fault in it. The alleged misstatement of the evidence by the learned trial judge was called to his attention and he corrected the error, if any, by referring the jurors to their own memory of the testimony.

As to the point on the value of plaintiff’s dress, the cost thereof was in evidence without objection. The question of the competency of this fact, as evidence, cannot, therefore, be raised. "Presumably defendant was satisfied, for • some purpose of its own, that the cost should appear. Be

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ing thus properly in the case, the cost was some evidence of value, taken in connection with the use to which it had been subjected. We are not inclined to interfere on this exception.

Judgment and order denying motion for new trial affirmed, with costs.

All concur.