48 N.Y.S. 348 | N.Y. App. Div. | 1897
Lead Opinion
On the evening of the 1st day of December, 1891, the plaintiff was a passenger on the defendant’s steamboat Drew on a trip' from Albany to New York. During the night, while lying in a berth which had been assigned to her, the berth just above her, occupied
The first question presented by the appeal is whether upon the whole case there was evidence of the defendant’s negligence to go to the jury. The defendant was a common carrier of passengers between Albany and New York. As such, it was its duty to use the utmost care to protect its passengers from injury while they were aboard its steamers. Failure to exercise such care is negligence. The plaintiff applied for a berth, and one was assigned to her to which she retired. All that she knows about the occurrence is, that at a very early hour in the morning the berth above fell upon her, and that she was injured by it. It appears in evidence that such an accident is one that very rarely happens, but that it has been known to occur on the Drew several times. Ordinarily, if due care is exercised in keeping berths in pz-oper condition, no such accident could be expected. When it does take place, the fact of the accidezit itself establishes that soznething out of the coznznon order of events has happened, either because of a defect in the berth or its appurtenances, or because of some outside intez'ference with the berth which caused it to fall. Ozie of those two things must have caused the accident. The condition of the berth aizd the manner of its construction, and whether that construction is a proper one azid safe for the .purposes for which it was intended,' are mottez-s peculiarly within the knowledge of the defendant, and not at all within Ihe knowledge of the plaintiff. In the nature of things all that the plaintiff could know was that, upozi asking for accommodations, she was assigned to this place, which it was the duty of the steamboat company to keep in a proper condition for liei’, and that while she wras thus occupying it, it fell and the accident happened to her. When she showed that, she had shown- enough prima facie to znake it appear that there was something wzxmg about the berth, and thus
It is objected that the injuries to the plaintiff were not sufficiently proved, and the specification under that objection is that while the plaintiff herself testified to the serious condition in which she was, and the immediate results of the injury which she claimed caused that condition, the connection between the injury and the plaintiff’s condition was only made by an hypothetical question which the defendant says was inconsistent and erroneously allowed. The objection to the question was specific and only to the form. As stated by the counsel for defendant, it was “ to the form * * * as being supposed or alleged to be founded upon facts, which facts have not appeared in the evidence;. * * * if it be an hypothesis it is not upon material and relevant facts to this inquiry; * * * that, there is no evidence * * * before the court or upon which this witness is competent to give opinion upon which
A.careful examination of the testimony in this case has led us. to •conclude that the verdict was not against the evidence. As we have •already seen, there was sufficient to warrant the finding of negligence. There is evidence to support the finding that the plaintiff received
There was great delay in bringing the action, but the plaintiff explains that by saying that she was advised to defer doing so until it could be seen just how far her injuries would prove to be serious; and that explanation was a plausible one, and whether it could be accepted or not was clearly a question for the jury. If the^ believed that the injuries to the plaintiff were as serious as her evidence made. it appear that they were, it is quite clear that the verdict was' not excessive.
For all these ■ reasons we conclude that the judgment and order were correct and should be affirmed, with costs to the respondent.
Barrett, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
(dissenting):
I dissent from the opinion of the court in this case. I do not think that the rule laid down by the opinion in regard to the hotel appliances of the defendant’s steamer is correct. No more care, is required in respect to those appliances than is required of a hotel keeper in taking care of his guests upon land. In that respect the relation of the traveler to the carrier is precisely the same as that of the guest of an inn to the innkeeper. In addition, however, to board and lodging, the carrier affords the passenger transportation, and in respect to the appliances for transportation, the carrier is bound to exercise the utmost care and diligence.
Judgment and order affirmed, with costs.