79 F. 896 | 2d Cir. | 1897
(after stating the facts as above). Upon the writ of error, the defendant relied much upon the alleged error of the trial judge in refusing to grant a motion, at the close of the testimony on both sides, to direct a verdict for the defendant upon the ground that the plaintiff’s testimony presented no adequate question of fact to go to the jury, and that a cause of action had not been proven. The statement of what has been given of the facts which the plaintiff attempted to show directly, or to have inferred from proven facts, is sufficient to indicate that he undertook to prove that his injury was occasioned by the negligent conduct of the defendant’s servants, and against which they had adequate warning. An examination of the record leads to the conclusion that the jury were justified in finding that the plaintiff had sustained the burden of proof which he took upon himself, and in finding that his injury was caused by the undue and improper carelessness of the defendant’s employés in attempting to hoist bundles of inadequately protected iron pipes to the ninth story of the building. The remaining exceptions, save one, were in regard to the admission or rejection of testimony.
A witness for the plaintiff testified that on the day of the accident, and before it occurred, and on the preceding day, he notified the men who were hoisting pipe of the necessity of care. Another witness testified that on the morning of the accident he told the men who were assisting in hoisting pipe on the ground floor that the proper way was to wrap canvas around the bottom of the bundle for the purpose of holding the pipes fast. An overruled objection was taken to the testimony of the first witness that it was immaterial and incompetent upon the question of negligence, but notice to the defendant, before an injury, of the nature of the dangers to be apprehended and of the unsafe practices which he is employing, is competent upon the question of his negligence by the use of methods which he knew, or ought to have known, were hazardous to the lives of those who are necessarily exposed to the danger. Brady v. Railway Co., 127 N. Y. 46, 27 N. E. 368. The defendant moved to strike out the testimony of the second witness, because it did not appear that the conversation was with one of its employés. The denial of the motion is the ground of an exception. There was enough evidence to justify the conclusion that the person who was notified was not only not a volunteer workman, but was doing electrical work in the employment of the defendant. The defendant thereupon called a steam fitter and engineer of 35 years’ experience in hoisting pipes and tying pipes in bundles, and asked him this question: “Do you know whether it is necessary, in the proper performance of duty in hoisting pipe, that there should be bagging attached to the end of the pipe?” The plaintiff’s objection to the competency of the proposed testimony, and to the similar questions which called for the opinion of the witness
The plaintiff called a physician, who had qualified himself as an expert upon mental and nervous diseases, and had made three examinations of the plaintiff, and who stated the character of the disease under which the plaintiff was suffering; that it would be, with reasonable probability, progressive; and that his mental power would also diminish. The defendant objected to the questions upon this subject that they were incompetent and not part of the res gestae. One question was objected to as immaterial, irrelevant, and incompetent. The point is now made that the testimony was incompetent, because competent testimony must be predicated upon facts explicitly stated and communicated to the jury. This objection is valueless for at least two reasons. The first is that the objection, when taken, did not state the particular fault which is now relied upon, and which, if stated at the trial and if true, could easily have been obviated. The alleged error is a specimen of a practice not to be encouraged, which is to object with a rattle of wrords that
“Tlie objection ‘incompetent, immaterial, and irrelevant* is not specific enough. The rule is universal that, when an objection is so general as not to indicate the specific grounds upon which it is made, it is unavailing on appeal, unless it he of such a character that it could not be obviated at the trial. The authorities on this point are all one way. Objections to the admission of evidence must he of such a sisecific character as to indicate dislinolly the grounds upon which the party relies, so as to give the other side full opportunity to obviate them at the time, if under any circumstance's this can be (lone.”
Tlie alleged ground upon which the objection was based did not exist to any material extent. The witness testified that he found the patient suffering from partial motor paralysis of the right arm and leg, and that from his professional experience such a condition is a progressive one. The circumstances of i he paralysis might have been stated with more diffnseness, but the character and nature of (lie disease which were ascertained, not by hearsay nor by listening to the testimony, but by personal observation, were communicated to the jury. Griswold v. Railroad Co., 115 N. Y. 61, 23. N. E. 726: McClain v. Railroad Co., 116 N. Y. 459, 22 N. E. 1062. The plaintiff had testified without objection that before the accident he was get-ling $2.25-per day; that his wife and two children, a boy and a girl, were dependent: upon him for support; and that he had no property. The next question, “How old is the little girl?” was objected to and admitted. The plaintiff answered, “Eleven years.” The point is now' made upon the authority of Pennsylvania Co. v. Roy, 102 U. S. 451, that the testimony was inadmissible. The kind of testimony which the Roy decision excludes had been received without objection, and the defendant had permitted the irrelevant matter to go to the jury. By the admission, with consent, of all the objectionable facts, the defendant waived any reversible error in the admission of subsequent testimony of the same character. The remaining error which is assigned is the refusal of the court to charge the jury (hat the use or nonuse of bagging by the defendant is not necessarily negligence. As the omission to protect (he rods by canvas was the fact upon which the question of negligence substantially turned, (he court declined, as a matter of course, to charge the jury that the omission was not necessarily negligence. The judgment of the circuit court is affirmed, with costs.
