78 A.D. 101 | N.Y. App. Div. | 1903
Lead Opinion
The question of plaintiff’s contributory - negligence does not arise, it being conceded that she was seated as 'a passenger in the car when the accident happened. The defendant’s negligence is predicated upon the fact that the car suddenly and violently left the track and tilted to one side, throwing the plaintiff to the floor and causing her injuries. This fact, together with evidence that the-track at the place was being changed to electric service ; that cobble stones were removed; that sand was piled along the track, a trench dug and barrels of gravel were present, and that a barrel of gravel was the obstacle encountered by the car, causing it to be thrown from the track, justified the inference that the driver was negligent in his failure to observe due care in the operation of the car.
The mere fact of derailment is not sufficient (Stevenson v. Second Ave. R. R. Co., 35 App. Div. 479); but this together with evidence as to its cause, from which the inference might be drawn that the defendant’s act or negligence produced it, is sufficient to present a question for the jury upon the subject of defendant’s liability. (Hastings v. Central Crosstown R. R. Co., 7 App.Div.312; Pollock v. Brooklyn & C. T. R. Co, 15 N. Y. Supp. 189.) A case somewhat similar to this is that of Hollahan v. Met. St. Ry. Co. (73 App. Div. 164). There a passenger standing on the front platform of a horse car was thrown to the street at a place where side tracks led into the defendant’s stables and the car swerved to that side, and a recovery was upheld. Here, as there, the jury were not left to speculate as to the cause of the accident, but a reasonable and almost conclusive basis was established for the finding that the defendant was negligent in permitting the track to be and remain in a dangerous condition, and that such an accident should have been anticipated and avoided. A barrel of gravel which is only two feet from the track and placed upon a sand pile beside which there is a trench is in such a situation that it is very likely to be struck by the running board attached to the side of an open car, which itself projects some distance over the track. This is taking the driver’s version that the barrel moved; which, however, he does not know, as he did not see it; and a fail-inference is that the barrel was left by the defendant too near the track and in the way of the car, or was so left that it got upon the track and thus caused the accident.
The testimony as to plaintiff’s particular injury was, therefore, inadmissible under the pleadings; but upon an examination of the record we find that the plaintiff herself was permitted, without objection or exception, to fully state her physical ailments which followed the accident; and that her physician corroborated her statement, also without objection; and even when the hypothetical question was asked him objection was not made that such matter was not pleaded. It was when another physician was called and was asked a similar question, which he did not answer positively so as to show that the fall did cause the specific injury mentioned, that the objection was first made that the pleadings did not permit such evidence to be given, and only on cross-examination did he say that the fall had caused inability to bear children.
Though we concede the rule to be that where incompetent evidence is admitted in the first instance without objection, and a subsequent effort is made to get in the same evidence over objection, it is the duty of the court tó exclude it, and its admission is error, still the fact that it has once been admitted has an important bearing upon the question whether or not the subsequent admission under exception was prejudicial to the party against whom it was offered. In that light, the record is to be further examined for the purpose of determining whether the admission of the evidence constitutes reversible error.
In civil cases the presumption is that all incompetent evidence is harmful, and it is only where it appears clearly that it was not harmful that it can be disregarded by an appellate court. Starting,
We think, therefore, that the judgment and order should be affirmed, with costs.
Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.
Dissenting Opinion
We dissent from the conclusion that the judgment should be affirmed. Although the testimony bearing upon the question of the inability of the plaintiff as the result of her injuries to bear children was, in the first instance, admitted without objection, it
The record shows that the court admitted such improper testimony, and that the defendant objected and excepted to its introduction ; and it follows, we think, that this judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., concurred.
Judgment and order affirmed, with costs.