11 N.Y.S. 917 | N.Y. Sup. Ct. | 1890
1. We think the evidence presented a question of fact for the jury. It was for the jury to determine whether the defendants were guilty of negligence. It was for the jury to determine whether the dam was so constructed as to secure safety, and whether the principle upon which it was constructed was reasonably safe, and whether reasonable guards to secure safety were provided by the defendants. Newall v. Bartlett, 114 N. Y. 404, 21 N. E. Rep. 990; Pantzar v. Mining Co., 99 N. Y. 372, 2 N. E; Rep. 24. It appears by the evidence that the plaintiff was not present when the scant-ling were put down, and knew nothing of the manner in which they were fastened. The jury may properly have found upon the evidence that the plaintiff had no knowledge or appreciation of the defects which led to the accident,
2. Plaintiff was asked, during his examination as a witness: “Question. How much wages did you earn a week from, Conants?” To this question the defendants objected that it was incompetent and immaterial, and, in dealing with the objections, the court observed: “It is received only as an element of damages sustained by the plaintiff.” The defendant took an exception, and witness answered: “Five dollars a week.” It is to be observed that there was no objection to the form of the question. Apparently it called for the wages he had been receiving prior to the injury. We think such evidence was competent. In Beisiegel v. Railroad Co., 40 N. Y. 9, it was held, viz.: “In an action to recover for personal injuries, evidence of the amount the plaintiff is earning at his trade, at the time of and immediately preceding the accident, is admissible upon the question of damages.”
3. In the course of the cross-examination of the physician and surgeon who attended tlie plaintiff, he was asked for his opinion in respect to the condition the plaintiff’s leg would have been in at the day of trial if he had “positively and speedily” obeyed instructions given by the physician. The question was objected to as incompetent and immaterial, and the court sustained the objection, and the defendant took an exception. Upon looking into the evidence following, given by the witness, we find that he, in effect, answered the question. The witness says, viz.: “The bones came together very nicely, and stayed so until he got off the cot-bed, and; if they had been kept where I first set them, there would have been no difficulty in the union, of these pieces of bones.” The witness added, at a later stage of his testimony, that “the plaintiff was a restless patient. The bones were broken in a good many pieces. It was crushed, and that would make any man restless. I told him that rest was imperative, and, in the fore part of the treatment, administered opiates to him to quiet his pain.” Considering the evidence that the witness gavel we are not inclined to say that any prejudicial error was committed preventing an answer to the question as it was first framed upon the subject embraced therein. -Some other rulings were made upon questions of evidence which do not require from us any special consideration, as we are of the opinion that no prejudicial error was committed.
4. When the injuries were received, by the plaintiff, he was under 21 years of age; and on January 7, 1889, the defendants paid to his father the sum of $100, and a paper was executed by the plaintiff on that occasion purporting to be a release of all claims against the defendants by reason, of the injuries to the plaintiff’s leg. When that paper was executed, the plaintiff was still a minor, being only 20 years, 8 months, and 17 days of age. It is to be borne in mind that the father of the plaintiff was entitled to his services until he became of age, and therefore he was entitled to receive of the defendants such sum as he had lost by reason of the injuries sustained by the injury disabling the plaintiff from earning wages. Where a minor is injured, the parents have a right of action, and the child also has a right of action. Cuming v. Railroad Co., 109 N. Y. 99, 16 N. E. Rep. 65; Traver v. Railroad Co., 4 Abb. Dec. 422. It appears by the evidence that the check for the $100 was given to the father of the plaintiff at his house, and that the plaintiff was not there; and that, when the plaintiff signed the paper, he received nothing. We think the payment of the money, under the circumstances, to the father of the plaintiff, does not stand in the way of the plaintiff’s right of recovery. When Green v. Green was tried before me at special term in Onondaga county, I found that the defendant, while an infant, had conveyed a certain piece of real estate to his father for the sum of $400. Having spent and wasted the money, "he had no means or property whatever, and, subsequent to his becom