11 N.Y. 544 | NY | 1862
It will be convenient to consider the questions raised on this appeal in the order they have been above stated. In reference to the testimony given- as to the distance the
We think the justice properly refused to nonsuit the plaintiff, as to the defendant Richardson, and to direct the jury to render a verdict in his favor. There was certainly some evidence to go to the jury that he was as liable as the other defendant. Previous to this burning he and the other defendant had used and worked this dredge as partners, and at the time of the fire it was being used in the same way. Ho change in the relations of the defendant Richardson to. the machine having been shown, the presumption would be, from the circumstances, that they continued the same at the time the plaintiff’s buildings were consumed. This presumption is strengthened by the proof of one of the employees on the machine, working then, as I understand the case, at the time, that he was so employed by the defendant Richardson. This proof was sufficient to send the case to the jury, and on it they have found the defendant, Richardson, was concerned in the management of the machine at the time, with the other defendant, and the Supreme Court at general term has refused to set aside the verdict as against evidence. We think it should not be disturbed and that the rulings of the justice at the trial were correct.
We think the judge ruled correctly, in excluding the defendant as a witness on his own behalf. Section 399 of the Code at the time of this trial, allowed the examination of a party on his own behalf, only when previous notice of the intention so to be examined, was given to the opposite party in writing “specifying the points upon which the party is intended to be examined.” The same provision existed, as to the examination of the assignor of a chose in action. In Faber v. Reese (8 How. P. R., 341), it was held by the general term of the fourth
In reference to the request to charge that if the dredge was properly constructed; and used for the purpose to which such dredges were generally applied, and was used in the ordinary manner with the usual guards and precaution, then the defendants were not liable; we think the justice properly refused so • to charge, and that such refusal coupled with the charge which . he actually did make in reference to it, expressed the correct rule of law. A similar request was made in the case of Fero v. The Buffalo and State Line Railroad Company (22 N. Y., 209.) The defendants’ counsel there asked the court to charge that if the engine was in good order and of proper construction and used with ordinary care, the plaintiff could not recover; which request was refused and the defendants excepted; and the court did charge that under the circumstances of that case the defendants were bound to use the utmost care, and if for the want of such care, fire is communicated, the defendants were liable. This court held such charge and refusal to charge correct, and sustained the decision and rulings of the judge at the trial. In the present case, the refusal to charge, and the charge as made in connection therewith, are in accordance with correct principle and established authority, and the judgment should be affirmed, with costs.
The testimony introduced by the plaintiff, to prove that sparks emitted from the smoke pipe of the dredge, had before been carried to as great or a greater distance, and set fire to buildings, was competent and properly
I think there was evidence enough to submit to the jury as to the defendant, Richardson. The testimony was that the defendants had operated the dredge as partners previously ; and one of the hands employed on the dredge at the time of the accident, testified that he was hired by the defendant, Richardson, to work generally on the dredge that fall.
I think the evidence of the defendant, Richardson, was prpperly rejected on the ground that the notice of his examination" was defective, in not specifying the points upon which he was intended to be examined. (Code, § 399, amendt., 1857.) The notice in this case was general, specifying no points at all. It was, in effect, merely a notice that he would be examined as a witness in the case. (Patterson v. John, 15 How., 289; Benham v. N. Y. C. R. R. Co., 13 How., 198.)
The charge of the judge to the jury “ that if they found from the evidence, that the defendants were guilty of actual negligence in the use of the dredge, and by means thereof had fired the property of the plaintiff, he was entitled to recover ” was clearly right. It left the whole question of negligence to the jury, whose province it was to pass upon it.
The court properly refused to instruct the jury “ that if the • steam dredge was constructed in the form generally adopted, and was used for the purposes to which such dredges are generally applied; and was used and applied in' the ordinary manner, and with the usual guards and precautions adopted by persons using them; there had been no such negligence as will render the defendants’ liable in this actionbecause such a charge would have partially taken the question of negligence "from the jury; and because such machines or dredges might have been usually used and applied in a careless manner, and not with the guards and precautions which the legal duty of care in the use of such machines required.
My conclusion is, the judgment of the Supreme Court should be affirmed, with costs.
All the judges concurring,
J udgment affirmed.