69 N.Y.S. 271 | N.Y. App. Div. | 1901
The action was brought to recover damages for injuries to the respondent, alleged to have been caused by the negligence of the appellants. At the time of the accident, January 27, 1898, the
1. There was a controversy upon the trial as to the manner in which the accident occurred. The appellants claimed that the hook did not straighten out, 'or the bail become disconnected with the hook at all, but that the bucket struck the respondent' whil¿ it' was still connected with the hook, chain and boom. This question was, however, one for the determination of the jury. There was clearly evidence sufficient to authorize the jury to find that the accident occurred as claimed by the respondent. This court would not be justified in disturbing the finding of the jury upon this question.
2. There was disagreement also upon the trial as to the size of the hook in use when the accident occurred. The respondent claimed it was only one and one-fourth inches in diameter, while the appellants claimed it was larger. This question of fact was .closely connected with the one already referred to. The appellants produced a hook at the trial which they claimed was the identical one in use at the time of the accident. It was larger than
3. There was contention at the trial as to whether a hook only one and one-fourth inches in diameter was reasonably safe for the purposes for which it was used, and evidence was given upon both sides bearing upon this question. The weight of the load lifted from the canal in each bucket, including the bucket itself, was given, and the strain put upon the hook in starting the bucket from the bed of the canal suddenly, beyond the mere weight being lifted, appeared. There was evidence given that the hook in general use was larger than one and one-fourth inches, and the fact found by the jury that this hook did in fact straighten out under the load and strain put upon it, at the time of the accident, and the opinions of experts were also given upon this question. The fact that the hook had not failed during its use for some time before the accident was not conclusive as to its being sufficiently strong for the use made of it. The jury found upon all the evidence upon this subject favorably to the respondent and their finding cannot be set aside by this court.
4. The'charge upon this branch of the case was a fair one, and the jury arrived at the conclusion that the accident and respondent’s injuries were caused by the negligence of the appellants in failing to furnish a reasonably safe appliance for the use of their employees. The was no error in this determination calling for a reversal of the judgment.
' 5. The question of assumed risk and the absence of contributory negligence were, upon the evidence, clearly for the jury and not for the court. It could not be said as a matter of law that the respondent knew or should have known, that the hook was not sufficiently strong for the use being made of it or that there was danger in using it, nor could it be said as matter of law that he failed to exercise due care in the use of the hook, or in the performance of
■ 6. We cannot say the damages awarded by the jury were excessive. The loss of the leg was a certain injury. There could be no mistake about that. Respondent was a young, healthy man, and the loss of the member, together with all the pain and suffering he endured, seemed to the jury to call for a verdict of $7,000. Under the well-settled rules of law we should not disturb the verdict fixing this amount of damages.
7. We do not find any exceptions to evidence or to the charge referred to in the appellants’ points. Upon the argument, however,, counsel discussed some exceptions taken to evidence given by respondent’s expert witness Cook. He was a mechanical engineer and testified to special study, experiments and practical experience with reference to the subject about which he was interrogated. We think he showed himself to be an expert, so as to' enable him to testify as such with reference to the questions put to. him, and we find no reversible error in the ruling of the trial court as to his evidence. •
For the reasons herein suggested we conclude that the judgment and order appealed from should be affirmed, with costs.
All concurred, except MoLebeab, J., dissenting.
Judgment and order affirmed, with costs.