10 Misc. 191 | New York Court of Common Pleas | 1894
Lead Opinion
As to the manner in which the accident, the subject of this suit, occurred, the plaintiff’s testimony furnished the sole evidence, all knowledge of the matter being denied by the defendant; and the main point raised upon this appeal is that the evidence failed to establish the fact that plaintiff was a passenger upon one of the defendant’s cars when her injuries were sustained. The plaintiff did not directly state that she boarded an Eighth avenue car, or a car in Eighth avenue, nor that she was thrown from a car on the line of the defendant’s route; her testimony being merely that she “went right to the corner, and took the car.” It appears that upon this occasion she left her place of employment, situated on Fourteenth street, between Seventh and Eighth avenues, and proceeded up town upon the car which she boarded; yet should we concede, in the absence of proof, that Eighth avenue formed the only immediate intersection with Fourteenth street where a line of cars proceeding up town was operated, the testi
During the cross-examination of the plaintiff’s witness Duffy, defendant’s counsel produced a letter written by the witness to the-defendant regarding the accident in question, and offered it in evidence. This letter was received in evidence, without limitation; and the further cross-examination was devoted merely to showing a discrepancy between certain dates as given. In this document appeared a statement that the plaintiff “was thrown from one - of your cars,” and the witness was in no way examined concerning the statement for the purpose of explaining it or altering its effect. As it stood, then, it was properly evidence in support of the plaintiff’s case (Helwig v. Insurance Co., 132 N. Y. 331, 30 N. E. 834); and so to be weighed by the jury as against certain testimony relied upon by the defendant in support of a contrary inference, towards which it is now claimed that the evidence preponderated. This evidence was, in one instance, the testimony of the plaintiff that the conductor in charge of the car wore "one of those light baseball caps”; whereas the defendant’s witness testified that the conductors in its employ wore dark-colored caps, the conductors of the Ninth avenue road wearing those of a straw color. The remaining evidence upon which stress is laid was that the plaintiff" has herself made a complaint, concerning this accident, at the stables of the Ninth avenue line. In view, however, of the fact that the word “light” could well have been intended to designate the texture of the material, rather than its color, and that the plaintiff’s application to another railway company could reasonably foe viewed by the jury as a mistake, which was properly rectified upon-its discovery, they taking into consideration the degree of intelligence attributable to the plaintiff, we are not inclined to disturb the determination reached.
We find no force in the argument that, upon the facts testified to, no negligence on the part of defendant’s servants was shown, and that the plaintiff was chargeable with contributory negligence. As the car slowed down at plaintiff’s signal that it was her intention to alight, she placed herself in a position which the jury could well find was not dangerous under the existing conditions, the continuance of which conditions, until the final stoppage of the car, the plaintiff had the right to expect in so far as it depended upon the exercise of reasonable care on the part of defendant’s servants. The unlooked-for movement of the car, which caused the plaintiff to loosen her hold, was due to the acts of the individuals managing it, and these acts were negligent; for the conductor.
In view of the evidence as to the suspended, if not destroyed, earning capacity of the plaintiff, and the previous extent of that ■capacity, together with the expert testimony regarding the nature and probable result of her injuries, we are satisfied that the award of damages was not beyond the proper province of the jury to make.
The exception to the court’s charge that mental pain and anguish could be considered as elements of damage presents no error (Caldwell v. Railroad Co., 7 Misc. Rep. 67, 27 N. Y. Supp. 397); nor does the one general exception taken to the charging of plaintiff’s requests (Adams v. Steamboat Co., 9 Misc. Rep. 25, 29 N. Y. Supp. 56; Huerzeler v. Railroad Co., 139 N. Y. 490, 34 N. E. 1101); and the other points raised by appellant are met by the views above expressed. The judgment should be affirmed, with costs.
BOOKSTAVER, J., concurs.
Dissenting Opinion
(dissenting). I am not satisfied that the verdict is supported by sufficient evidence of the defendant’s negligence or of the plaintiff’s nonnegligence. It is neither clear that the conductor knew or should have known the precarious position of the plaintiff, nor that he understood or should have understood her motion as a signal to stop. The position she had assumed was evidently insecure; and that position, as much as the accelerated movement of the car, was the cause of her fall. The damages, too, I believe to be excessive. There should be another trial of the cause.