39 N.Y.S. 944 | N.Y. App. Div. | 1896
This action was brought to recover damages for personal injuries which were sustained by the plaintiff by coming into collision with a train upon the defendant’s track at a highway crossing about one mile east of the village of Newark, Wayne county.
The accident occurred at. a little after six o’clock in the evening of November 22, 1892.
The plaintiff was a manufacturer and peddler of perfumes and extracts. He was driving a - horse attached to a top wagon which had been fitted up with especial reference to his business.
At the point of the accident the highway runs north and south and the railroad east and west.
The four tracks of the defendant’s road .are numbered consecu-r tively from the south, No. 1 being the south track, and No. 4 the north track.
The evidence tends to show that this crossing is, by no means, what is called a “ dangerous ” one, but that in ordinary circumstances a traveler approaching it from the north has, at any point within 300 feet thereof, a fairly unobstructed view of the tracks to the east for about eighty rods, and that from a point eighty-six feet north of the north rail of track 4, the view east and west is-wholly unobstructed for a quarter of a mile.
It appears, however,' that upon this occasion the night was very dark, and that the darkness was somewhat intensified by a snow storm of considerable severity. Melvin Ostrander, one of the plaintiff’s witnesses, who resided near the crossing, described it by saying: “ It was dark and storming. The wind was blowing from the west. It was snowing, storming. Sometimes it came pretty rough, that you couldn’t hardly discover anything; then again it would slack up a little. * * * I noticed in regard to the difficulty of seeing a train that night, for I had to get off the track pretty quick myself, once. By spells that night it was difficult to see the headlight on an engine on account of the storm. * * * My attention was called that evening as to the difficulty of hearing trains as they approached the crossing. It was difficult that evening to hear trains as they approached the crossing.”
Some evidence was given by the defendant tending to show that this account of the storm was somewhat exaggerated, but, on the other hand, several witnesses testified that the storm did prevail with more or less blinding force.
The plaintiff swears that as he approached the crossing he stopped at the north end of the cattle guard fence and looked out from his wagon in both directions, but that, hearing and seeing nothing, he proceeded to the second track, where he again looked both ways, which was the last he remembers until he regained consciousness after the accident. This statement was flatly contradicted by the engineer of the train which struck the plaintiff, who testified that
.- We are.of the opinion, however,.that the defendant’s contention is not well founded, for, although it may seem -almost -incredible that the plaintiff could have approached this crossing in the. manner described by him without either seeing or hearing the train ..which struck him, still there was some evidence which-tended to show that the storm was of such a character as to obstruct, even .the headlight of the locomotive from view, and to prevent the noise of the train’s .approach from, being, heard. This being the case, we cannot say* as .matter of law, that the jury were bound to disregard it. ....
The same is. true in regard to the question of the defendant’s negligence, which consisted in its alleged failure to give proper notice of the approach of its train, and concerning which the evidence-was .equally conflicting and.perhaps quite as unsatisfactory. The jury, liowever, saw the witnesses upon the stand and heard them testify. The -evidence was submitted to -them by the learned court in. a' .charge which is not subjected to criticism, and unless some error was committed in the. reception or rejection of. evidence, -ye. are unable to see why we are,not concluded by -their verdict.
, Our attention has been directed to several such exceptions which, it is claimed, are entitled to very careful consideration.
First in the order of their presentation-are those.'which, arose upon the answers to certain qiiestions asked of the witness ' Dr.' Xandon, who was called to see the plaintiff immediately after the accident and who'continued to; attend" him while he was suffering from his injuries. He had testified to the existence of a breach upon the plaintiff’s right side, which he termed “ direct hernia,” and upon his re-direct-examination was asked whether “ a breach of that kind at any time becomes dangerous to life, or becomes dangerous or painful in any way?” This question was objected to by the' defendant’s counsel as incompetent, immaterial and speculative,' but the court permitted him to answer the same upon condition that the witness knew whether- such a breach was dangerous or painful.
It is quite possible that the evidence which the witness gave with reference to the hernia becoming strangulated is open to the criticism made by the counsel, but it is to be borne in mind that this portion of his evidence was not in response to any question. It was vólun-. teered upon his part, and the record does not disclose that any motion was made by the defendant’s counsel. to strike the same therefrom.
Other exceptions which are supposed to present erroneous rulings arose during the direct examination of Dr. Charles H. Towlerton, a witness sworn on behalf of the plaintiff, who was asked the following question, viz.: “ Q. You may answer whether, from the examination which you made of the plaintiff and history of his case that has been given to you, your practice and experience as a physician and surgeon, you are able to give an opinion as to the future effects of these injuries of the plaintiff, as to what the effect will be in the future, as to affecting his health? A. Yes,
It appears that the history of the plaintiff’s case which this witness had obtained- was furnished him by both the plaintiff and Dr. Dan don ujdoii some occasion when the witness was making a physical examination of the former, in Order to qualify himself to testify in the case, and he had already described very minutely the plaintiff’s- condition which this examination .disclosed. Within all the authorities, therefore, he was certainly authorized to express an opinion, if he had one, as to the probable future condition of the plaintiff’s health. (Griswold v. R. R. Co., supra; McClain v. B. C. R. R. Co., 116 N. Y. 459.)
The only objectionable feature of all this evidence is contained in the first question asked> which apparently furnishes to some extent at least the basis upon which the opinion thereafter expressed is made to rest and which embraced a history of the case, received out of court, and from the plaintiff himself; but the answer to this is, that the question, in its entirety, was- not. an improper one, and as. the objectionable feature was not specifically pointed out, the counsel’s objection, which was- quite general in its character, -will not avail him upon this appeal. (Wallace v. Vacuum Oil Co., 128 N. Y. 579.)
The plaintiff called as a witness one John E. Burleigh, who testified that he saw the train which struck the plaintiff as it approached and crossed the highway, and that the bell was not rung nor the
In disposing of this contention, it is to be noted that the witness was asked, not whether he would, but whether he could, have heard the bell or whistle. This, it seems to us, called for something more than the mere expression of an opinion, for the answer-involved the statement of a fact, about which the witness, by reason of his experience or the knowledge which he possessed as to the acuteness of his faculties, was more competent to speak than any one else, and, therefore, it was one to which the plaintiff was clearly entitled.
The attempt to draw the line between the statement of a fact and the expression of an .opinion is often attended with some difficulty, but this precise form of question has received judicial sanction in a case which arose in the Court of Common Pleas of the city of New York, but which ultimately reached the court of last resort. (Casey v. N. Y. C. & H. R. R. R. Co., 6 Abb. N. C. 104-124; S. C., 78 N. Y. 518.)
The only remaining exception relates to the exclusion of evidence which the defendant sought to obtain from the witness Monahan, who was the conductor of the train in question. He testified that when his train came to a stop after the accident, his rear trainman went back on the track with red and white lanterns to protect the train, and he was asked how far the trainman was away when he last saw him. -This question was objected to and the objection was sustained, to which the defendant’s counsel duly excepted.
We are inclined'to think that, strictly speaking, this ruling was erroneous, as the evidence sought to be elicited' was designed to meet that which had been given by the plaintiff and his witnesses .as to the violence of the storm and the extent to which it obscured
Upon a careful review of the entire case, therefore, we are of the opinion that no error was committed by the learned court which will make a retrial necessary, and that the order appealed from should, consequently, be affirmed.
All concurred.
Order appealed from affirmed, with costs.
