67 N.Y.S. 985 | N.Y. App. Div. | 1901
The defendant appeals from a judgment entered on a verdict for-■plaintiff for $12,750 for damages for personal injuries resulting-from the negligence of the defendant, and from an order denying; a new trial on the minutes.
The plaintiff’s case is that on June 9, 1899, she was a passenger-on an open trolley car of the defendant; that there was first heard, an unusual bumping, rumbling noise at the bottom of the car called, “bucking;” that this was heard by the conductor and the motorman, who continued the trip; that there shortly followed an outbreak of fire underneath the car and at the rear end, and that them came an explosion; that fire and flame enveloped the car; that a, panic fell upon the passengers, and that the plaintiff in terror leaped, from the moving car and was injured.
After these propositions, the learned counsel for the appellant argues that inasmuch as it is “ conclusively shown ” that the defects were in the controller box, and as there was evidence that the particular controller box was inspected on the morning of the accident, and that there was no visible injury or sign of defect, therefore there can be no negligence brought home to the defendant. The vice in this argument is that it ignores the theory of the plaintiff which was supported by evidence. This theory is that the accident was due to the fact that the insulation of the electrical wires of equipment had become defective, and that in consequence there was a “ short circuit,” which caused the fire in the first instance. The defendant’s' witness, Cole, testified that “ Short circuit is where two wires have worn against one another inside of the hose, worn through so that the wires are naked and come in contact. That is the result of defective insulation.” The cables were affixed underneath the carso that
Defendant’s witness, Arnold, who inspected all of the cars, was asked on cross-examination : “ How many cripples a day come into your depot of these Nassau cars? Mr. Oeland : I submit that’s an improper question unless this is'shown to be the same kind of a car. [Objection overruled. Defendant excepts.] ” It is now urged that the sole purpose of the question was to prejudice the jury. The term “ cripples ” was taught to the plaintiff’s counsel by the witness, who said: “ I don’t inspect only those cars that come in as crippled.” The learned counsel for the defendant argues that the question was not germane to test the memory of the witness because he had made a written memorandum at the time and was “ practically testifying from that memorandum.” He did claim that he had made a memorandum, but he never produced it. It appears that a considerable number of crippled cars came into the shops every day; that eight months had elapsed between the time of the accident and the trial, and that the attention of the witness was first called to this car when he went on the stand. It was entirely competent on cross-examination to test the memory of the witness as to that particular car, and, to that end, to ascertain how many cars passed under his observation every day.
It is urged that Mr. Justice Marean erred in charging the jury that the inspection of the cars and appliances must be sufficient “to insure the safety of passengers against accidents.” The record reads: “Mr. Oeland: We except to the modification. We ask
It is contended that the court erred in charging the jury as to the degree of the care resting upon the defendant. The learned court had charged : “ A railroad company is not the insurer of the safety of passengers, but its servants are bound to do all that man can do
The learned counsel for the appellant asked the court: “ I ask your honor to charge — this is a modification of the charge already requested — if they believe that the railroad company used care, in the selection of the controller in this case, and inspected the same, and that the inspection was sufficient under ordinary circumstances and commensurate with the dangers incident to its' use, even if it did blow out, they should find for the defendant, if, in the exercise of that care, they believe-the defect could not have been discovered.” The court declined, under exception, and very properly declined, inasmuch as here was a request that, in effect, entirely ignored the theory of the plaintiff, namely, that the fire was due to defective insulation and started at the bottom in the rear of the car, and that it was not primarily due to the controller or to any defect therein. The learned counsel did not limit his request by the supposition, if facts showed that the cause of the fire was the controller alone, or defects therein, or that it was confined thereto.
I have reviewed all of the questions presented by this appeal, save that of the excessive damages. The plaintiff suffered a sprained back, a very bad sprain of the right ankle and a laceration of its ligaments, three fractures of the left ankle and a laceration.. There was much attendant pain and suffering.. The hospital physician in attendance, who treated her at the house, also examined her a week before the trial and found the right foot normal in contour, but that the plaintiff complained of weakness therein, and that it was liable “ to give way under her any time,” He found considerable deformity in the left foot; that it was impossible for the plaintiff to get her heel On the ground; that it was raised about an inch therefrom and would not support the normal weight. This deformity which resulted in inability to move the foot was due to permanent inflammation. He was corroborated by "two physicians. Plaintiff requires support tq stand, "needs a crutch in walking and suffers continuous pain, and her crippled condition will, be permanent. She is thirty-one years old, lives with-her hiisband, who is a policeman, and has two children. Before the
The. judgment should be affirmed, with costs.
Sewell, J., taking no part.
Judgment and order unanimously affirmed, with costs.