Wilson v. Brooklyn Elevated Railroad — 30 N.Y. St. Rep. 240

Majority

p. 240

Charles H. Wilson, Resp’t, v. The Brooklyn Elevated Railroad Co., App’lt.

(City Court of Brooklyn,

General Term,

Filed April 1, 1890.)

Headnote

1. NegUíI&ence—Evidence sufficient to warrant submission to jury.

Plaintiff testified that an ornamental panel of a stove, weighing three pounds, fell out and upon his foot while the gateman was raking the fire, and showed by physicians that he sustained severe injuries thereby. Held, that the court properly refused to dismiss; that it could be fairly argued that a panel of a stove in proper repair could not fall from its place-under such circumstances.

2. Same—Evidence.

Plaintiff was asked if he knew the profits of his business the preceding year. This was objected to as immaterial and incompetent, as not pleaded and too speculative and remote. No motion to strike out the answer was made, and the court limited compensation to that for pain and injury. Held, that the exception was not well taken.

Appeal from judgment in favor of plaintiff, entered on verdict

Action to recover for injuries alleged to have been caused by defendant’s negligence.

The plaintiff in this action is a practicing physician and has been such in the city of Brooklyn since 1872. At the time of his injury his income from his profession amounted to at least $4,000 per annum.

On the 10th of February, 1889, he was called, in his professional capacity, to attend a patient early in the morning. Having-discharged his duty he, on his return home, entered one of the defendant’s stations, paid his fare and awaited the coming of the-train he wished to take.

It was a cold morning and plaintiff, at the time, stood in front of a stove, situated about the centre of defendant’s station, warming his hands, when one of the iron doors of the stove, weighing at least three pounds, fell from its place on the stove and struck plaintiff with its sharp edge on the top of his foot near the root of

p. 241

the great toe, bruising and injuring the small bones of the foot which abound in that locality, and causing intense pain to the plaintiff.

Plaintiff testified that the upper portion, where the clip should have caught, was worn away.

On the trial plaintiff was asked the following question :

. Q. Prior to the 10th of February, 1889, do you know how much, during the year just preceding that, you earned in your business? Objected to as immaterial, irrelevant and incompetent, as not pleaded, and as too speculative and remote; objection overruled; defendant excepts.

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

The plaintiff claims in this action that on February 10, 1889, he was standing in a station of the defendant waiting for a train, and that while so doing, an ornamental panel of the stove, of the weight of three pounds, fell from its place upon his foot, whereby he suffered severe and painful injuries. At the trial term, a verdict was rendered for the plaintiff for $800, ánd from the judgment entered thereon, and the order denying a new trial, this appeal is taken.

The counsel for the appellant contends that the motion to dismiss should have been granted, on the ground that there was no sufficient evidence of negligence on the part of the defendant. It is a conceded fact in the case that the panel did fall upon the foot of plaintiff, and, from the testimony of the physicians upon the trial, the jurors could find that thereby the plaintiff was severely injured. The stove was produced on the trial by the defendant in the same condition as on the day when the plaintiff was hurt, and the jury inspected the same. It also appears that the panel was not used as a door or for any necessary purpose. The court laid down the proper rule of law that the defendant was only bound to exercise ordinary care in respect to its stations and approaches. The plaintiff could not be expected to give any testimony as to the condition of the stove prior to the day he was injured. He did prove that a piece of iron', weighing three pounds, fell upon his foot, that it fell from the stove while the gateman was raking the fire, and it can be fairly argued that a panel of a stove in proper repair could not fall from its place under such circumstances. We, therefore, hold that the motion to dismiss was properly denied, and for the same reasons that the verdict was not against the weight of evidence.

The exception at folio 16 was not well taken. The question objected to was: “Do you know how much,” etc. Ho motion was made to strike out the answer, and the two next questions were not objected to. We hold the appellant to his exception as taken, because the objection was technical. Ho proof was made in the case of diminution of earnings, and the jury were only instructed to compensate for the pain and injury. In view of the-amendment of the complaint, to include future damages, we think

p. 242

.also that it can be argued under the authorities that the testimony was competent, but it is not necessary to decide the question.

We have examined the other exceptions in the case, and find mo error.

Judgment and order denying new trial affirmed, with costs.

Van Wyck, J., concurs.