McCooey v. Forty-Second Street & Grand Street Ferry Railroad

This action was brought to recover damages for injuries alleged to have been received by plaintiff while engaged in work as a laborer on the 18th of December, 1891. According to the version given by plaintiff and his witnesses, it appears that on that day, while engaged in building a cable railroad in Broadway, just south of Thirty-fourth street, he was knocked down by the nigh horse attached to one of defendant’s cars going in a southerly direction, and his right foot went under a Broadway car, passing south at that instant, and was run over and injured. Plaintiff was engaged at the time of the accident in the work of replacing a cast-iron manhole cover over the entrance to a vault. The place where he was working was in a space between the four tracks of the Sixth Avenue Railroad Company and the Broadway & Seventh Avenue Railroad Company, where they cross south of Thirty-fourth street, which space is called “The Diamond.” Having raised the manhole cover, and permitted three or four men to go down into the manhole to work, the plaintiff and a fellow workman were engaged in replacing the cover, the accident happening just while the plaintiff was letting the cover down in its place, wifh the bar inserted in the cover, and while he was in a stooping position. Testimony was given to show that the defendant’s car was going at the rate of at least five and one-half miles an hour; that the driver was not looking in the direction in which he was going, but towards the east, and though shouted to, to stop, when the horses were twenty-five to thirty feet away (which, as shown by an expert, would have been sufficient space within which to have stopped the car), the driver paid no attention to these signals, but drove right on, striking the plaintiff, and causing the injuries for which he sued. The plaintiff being lawfully engaged, therefore, in a work upon the streets, and near the track over which the defendant’s cars ran, and being struck while so engaged by a car running at a considerable rate of speed, the question of the defendant’s negligence and the plaintiff’s freedom from contributory negligence was properly submitted to the jury. It was shown that the plaintiff was thrown down in such a position that the wheel of the Broadway car went over his right foot, starting at the toes, and running off near the ankle, wrenching the ankle, and tearing the heel of the shoe loose. He remained in the hospital five days, was then taken home, and was laid up by the injury a little over four months, during which he suffered pain, and was unable to use his foot or to work, and during two or three of such months obliged to use crutches. The amount awarded of $1,500 was not, under the circumstances, excessive.

This leaves, as the only grounds upon which the verdict or judgment can be assailed, the exceptions taken to the admission of evidence. • The first is to the introduction in evidence of a map, and permitting the witness to state that the distance between the tracks of the Sixth Avenue road, and at the point where the accident occurred, was five feet “three inches. It is urged that this was entirely irrelevant, because the Sixth avenue road was a stranger to the suit. But the simple answer to this

The next objection relates to a hypothetical question asked of a doctor, and which is sought to be sustained by the line of (jases which hold that the question must contain the facts assumed, so that the jury can have before them the facts in the expert’s mind upon which he bases his answer to the hypothetical question. These cases are not available to the appellant, because his objection was not put upon the ground that the question did not contain all the facts necessary to enable the expert to answer, but upon the ground of its incompetency. That such evidence was not incompetent is not only apparent from its character, but from the fact appearing from the record that the defendant’s own counsel had, in a series of hypothetical questions, endeavored to elict like testimony.

Other exceptions relied upon by appellant were to rulings of the court in permitting the doctor to give his opinion as to the probable duration of the injuries. Such questions were objected to, not as to form, but as being incompetent; and the objection thus made was not sufficent to call the attention of the trial judge to the ground now relied upon. That it is competent in these cases to show what results will flow with reasonable certainty from injuries received, as well as the right to recover for such injuries, has been frequently recognized. The witness under examination was a skilled surgeon, who was in every way qualified to give the information which the questions were directed to elicting.

It is unnecessary to notice in detail the other objections relied upon on this appeal, it being sufficient to say that they are wanting either in form or substance. Upon the whole case, we think that the verdict of the jury was sustained by the evidence; that the damages were not excessive, and that the judgment is right, and should be affirmed, with costs.

All concur.