Barry v. Second Avenue Railroad — 49 N.Y. St. Rep. 705

Majority

p. 705

John Henry Barry, App’lt, v. The Second Avenue Railroad Company, Resp’t.

(New York Common Pleas, General Term,

Filed December 5, 1892.)

Headnote

1. Negligence—Evidence.

In an action for personal injuries, it appeared that plaintiff, a boy of four, was. knocked down by defendant’s street car and injured so seriously that it became necessary to amputate his foot. A physician was called by plaintiff and testified that he had advised an amputation at once, but'the-boy’s parents would not consent, and on cross-examination was asked, under objection and exception, the reason which prompted such advice,.

p. 706

and answered, that if done at once it would have been necessary to amputate but a small portion of the foot. Held, that such question, if not tending to establish a defense, was certainly relevant to the question of damages.

3. Same.

A question as to the distance within which a car might be stopped, asked of a “master mechanic, who never drove a car,” was properly excluded.

2 Same.

In such case, the exposition of the word “old-timers,” i.e., that the horses were aged and infirm was proper in rebuttal of the plaintiff’s evidence that they had been driven so far and so furiously.

Appeal from judgment on a verdict, and from order denying motion for a new trial.

Action for injury to plaintiff, by collision with a car, while he was crossing the defendant’s railway track in the street.

Cantor, Linson & Van Schaick, for app’lt; Merrill & Rogers (Payson Merrill, of counsel), for resp’t.

We do not see how, consistently with familiar rules, we can reverse this judgment.

The issues were submitted to the jury'on conflicting evidence, and upon a charge with which the plaintiff’s counsel avowed his “perfect satisfaction.’’

Nor is there any such preponderance of proof in favor of the plaintiff as would authorize us to set aside the verdict as against the weight of evidence. It may be that, in view of the apparent discrepancy between the testimony of plaintiff’s chief witness on this and on a former trial, the jury declined to credit his story; but, the trutsworthiness of his evidence presented a question peculiarly for solution by them, and we are incompetent to interfere with their decision.

Appellant impeaches the judgment for error in the rulings upon evidence; but, despite the forcible argument of his counsel, we are constrained to the conclusion that none of his exceptions are tenable.

The testimony of Dr. Fivey, to which exception is taken, if not tending to establish a defense, was certainly relevant to the question of damages. The witness answered, “By doing this operation the child could have stood as I stand now, perfectly erect, and could have worn a false foot with perfect safety and repose.” It appears the parents objected to the amputation; and the plaintiff being non sui juris, their objection was his objection. The defendant was not chargeable with an aggravation of the injury by his act. Then, too, the witness had testified in chief for the plaintiff that he suggested amputation, and it was clearly proper, on cross-examination, to allow him to be asked the reasons of his advice.

The exception to the exclusion of the evidence as to the distance within which a car might be stopped, is not well taken, because it is not apparent that a “master mechanic, who never drove a car,” is an expert in the matter as to which the witness was interrogated, and because it seems from the evidence of both

p. 707

parties that when the driver saw the boy he was too near to prevent the collision with him.

The exposition of the meaning of the word “ old-timers,” i. e., that the horses were aged and infirm, was proper in rebuttal of the plaintiff’s evidence that they had been driven so far and so furiously.

We observe no error in the record, and we cannot say that injustice is done by the verdict.

Judgment and order affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.