O'Nell v. Dry-Dock

• Decision Date: 01 December 1891
• Citation: 29 N.E. 84,129 N.Y. 125
• Parties: O'NELL v. DRY-DOCK, E. B. & B. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 125

29 N.E. 84

O'NELL

v.DRY-DOCK, E. B. & B. R. CO. et al.

Court of Appeals of New York.

Dec. 1, 1891.

Appeal from superior court of New York city, general term. Affirmed.

Action by Margaret O'Neill against the Dry-Dock, East Broadway & Battery Railroad Company and Theodore Westing for personal injuries. Plaintiff obtained judgment, which was affirmed by the general term. Defendants appeal.

John M. Scribner and Jacob F. Miller, for appellants.

G. Washburne Smith, for respondent.

EARL, J.

In July, 1889, while the plaintiff was a passenger in one of the cars of the defendant corporation, she was injured in a collision between the car and a truck of the other defendant, and she brought this action to recover damages for her injuries, alleging that they were caused by the concurring negligence of both defendants. It is not important now to detail the circumstances attending the injury of the plaintiff. A careful scrutiny of the evidence leaves no doubt upon our minds that it fairly tended to show concurring negligence of both defendants; and the verdict of the jury, approved by the general term, therefore concludes us. Hence we have only to consider whether any exceptions taken by the defendants, or either of them, upon the trial, point out error.

The collision causing the injury of the plaintiff took place while the car was crossing and the truck was going up Broadway. The claim of the plaintiff and of the railroad company was that the driver of the truck was negligent, because he did not keep the truck out of the way of the car, and drove the truck with its load against the car. Upon the trial a witness was called for the railroad company, of large experience as an onwer, driver, and manager of trucks, and well acquainted with the locality where the collision occurred, and he was asked this question: ‘Suppose a truck, weighing nineteen hundred pounds or thereabouts, carrying a load of thirty-six hundred pounds or thereabouts, and drawn by a horse weighing twelve to thirteen hundred pounds or thereabouts, and that the horse and truck were being driven up Broadway, and were at the time within one hundred feet south of Walker street, driving north, with the horse on a walk, and the horse being a gentle and tractable animal under full control at the time, within what distance could such a truck, under such circumstances, be stopped, the pavement being wet by sprinkling carts?’ This was objected to on behalf of the defendant Westings as ‘incompetent, and that it is not a question for an expert,’ and the objection was overruled, and the witness answered: ‘Between three and four feet.’ This belongs to a class of questions not much to be encouraged. The answer to such a question can be of but little service to jurors. They are generally well acquainted with such common things as trucks and horses, and the power, action, and capacity of horses, which, particularly in the city of New York, are constantly open to observation. Yet we cannot say that the expert witness did not know more about the subject of inquiry than ordinary jurors can generally be supposed to know. The question is barely competent, and probably was not harmful; and the judgment should not, therefore, be reversed because the judge allowed it to be answered.

The counsel for the railroad company, in a variety of forms, requested the court to charge that the railroad company, with its car crossing the street, had the right of way, and the paramount and superior right in the street, which the driver of the truck was bound to respect, and he refused so to charge, and this refusal is now complained of as error. The rule invoked by these...