136 N.Y.S. 733 | N.Y. App. Div. | 1912
This is an action to recover damages for the death of plaintiff’s husband, due to the alleged negligence of the defendant in the operation of one of its trains on the 3d day of October, 1909. It appears from the evidence that Dr. Terwilliger, plaintiff’s intestate, was invited to accompany a Mr. Welsh in his automobile to Long Beach on the day in question, and that Dr. Terwilliger and Mr. Welsh were accompanied by a Mr. Rhoades, who occupied the “rumble ” seat upon Mr. Welsh’s roadster, and who was at the time of the accident leaning forward, talking to Dr. Terwilliger. Mr. Welsh owned the car and was driving the same, and there is no suggestion that Dr. Terwilliger had any authority or control over it or its driver. He was merely a guest of Mr. Welsh, and there is nothing to over
This view of the case* disposes, practically, of the principal objection urged upon this appeal, for if the evidence is sufficient to warrant a judgment in favor of the plaintiff, upon the theory that the plaintiff’s intestate knew the locality, then the admission of evidence tending to show that he did not know the locality, which the jury was subsequently directed to disregard, could not be of such a prejudicial character as to justify the reversal of a judgment, assuming "the ruling to have been erroneous in the first instance. The evidence specially objected to was given by Mr. Ehoades. He was asked, “Was anything said about going to Long Beach between you ? ” He answered,
It is also urged that the court erred in permitting Mrs. Wilson to testify that she saw the accident and that she exclaimed, just at the moment of the approaching collision, “Why don’t they blow that whistle, the people in that car don’t see that train.” The court subsequently struck out the declaration “ the people in that car don’t see that train,” and permitted the remainder of the exclamation to remain, the defendant taking an exception. The issue to be determined was whether the defendant had given any warning on its approach to this crossing, and it was clearly competent for the plaintiff to prove that no whistle was blown, and this witness had testified that she heard no whistle, and the fact that she made an exclamation at the very crisis of the transaction, referring to the fact that no whistle was blown, seems to us to be competent; it was a fact which showed that her attention was directed to the very matter in issue. It was not evidence of the fact that the whistle was not blown; it was merely a fact showing that the witness, in testifying that she heard no whistle, was testifying to a matter to which her attention was directed at the time, and is not more objectionable than any
We think the charge of the court was as favorable to the defendant as could be justified by the facts in this case, and that there were no errors requiring a reversal of this judgment. It is true that the verdict is large, but it is true that the plaintiff’s intestate was a doctor, who, at the age of thirty-five years, was earning $5,000 per year. A. practice of that amount at thirty-five gives a fair promise of a larger and more lucrative practice during the active years of his life, and he had a considerable expectancy at that time. We think the verdict is not so far excessive as to warrant this court in reducing it, and that it should not be disturbed.
The judgment and order should be affirmed, with costs.
Hirschberg, Carr and Rich, JJ., concurred; Thomas, J., dissented.
Judgment and order affirmed, with costs.