Gombert v. New York Cent. & H.R.R. Co.

• Decision Date: 04 May 1909
• Citation: 88 N.E. 382,195 N.Y. 273
• Court: New York Court of Appeals Court of Appeals
• Parties: GOMBERT v. NEW YORK CENT. & H. R. R. CO. et al.

195 N.Y. 273

88 N.E. 382

GOMBERT

v.NEW YORK CENT. & H. R. R. CO. et al.

Court of Appeals of New York.

May 4, 1909.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Julius Gombert against the New York Central & Hudson River Railroad Company and the Lehigh Valley Railroad Company. From a judgment of the Appellate Division (123 App. Div. 913,108 N. Y. Supp. 1133) affirming a judgment for plaintiff, defendants appeal. Reversed, and new trial granted.Daniel J. Kenefick and Alfred L. Becker, for appellants.

Clarence M. Bushnell, for respondent.

WERNER, J.

In the city of North Tonawanda there is a highway known as ‘Wheatfield street,’ which runs substantially east and west, and crosses at grade the tracks of the New York Central & Hudson River Railroad Company, which run practically north and south. The Lehigh Valley Railroad uses these tracks in its traffic between Buffalo and Niagara Falls. On the 2d day of October, 1905, the plaintiff was driving across these tracks on Wheatfield street, and collided with a south-bound Lehigh Valley train. The crossing was equipped with gates operated by compressed air from a tower maintained by the New York Central Railroad Company, which was in charge of a gateman employed by that company. The plaintiff brought this action to recover for the injuries sustained in that collision, and both of the corporations above named were made parties defendant upon the theory that the one had been negligent in the operation of its gates and the supervision of its crossing, while the other had been negligent in the operation of its train. For the purposes of this appeal we may assume that the alleged negligence of the defendants and the plaintiff's alleged freedom from contributory negligence presented questions of fact for the jury. The plaintiff recovered a substantial verdict against both of the defendants, and the judgment entered upon it was affirmed at the Appellate Division by a divided court. Both of the defendants have appealed to this court upon two exceptions taken by them to rulings of the trial court.

We shall first consider the exception to the refusal of the trial court to charge that there was ‘no indirect testimony’ that Kumm, the gateman, ‘was in complete possession of his faculties of hearing at the time of this accident.’ The recital of a few additional facts will disclose the bearing of this request. The defendants called as a witness the gateman, Kumm. He was so deaf that a speaking tube had to be used for the purpose of making him hear the questions of counsel. He testified that this deafness came upon him all at once on the 10th day of November, 1905, which was a little more than a month after the accident to the plaintiff, and that previous to the 10th day of November, 1905, his hearing had been good. His testimony in this behalf was corroborated by that of his wife, which was to the same effect. Upon this situation thus presented, counsel for the defendants requested the trial court to charge ‘that the evidence is that the gateman was in complete possession of his faculties of hearing at the time of this accident.’ To this the trial court assented by saying: ‘That is his evidence.’ Counsel for the defendants then said, ‘Also his wife's' to which the court replied, ‘Surely, all the evidence on that subject is to that effect.’ Defendants' counsel, not content with that unequivocal statement, further pressed the matter by suggesting, ‘There is no evidence to the contrary,’ and to this the court responded, ‘No direct evidence.’ Thus the case stood when the defendants' counsel requested the court to charge that ‘there is no indirect testimony to the contrary.’ Thereupon the court replied: ‘I will not say that. In other words, the testimony of the witness Kumm and his wife is for the jury to determine.’

We think the exception to this statement and ruling was not well taken. The court had previously charged all that the defendants were fairly entitled to upon that subject. Counsel in their zeal then pursued the subject somewhat hypercritically, and they really injected into the case the unnecessary colloquy as to ‘indirect testimony.’ Quite apart from this technical view of the matter, however, there was no error or impropriety in leaving it for the jury to decide whether the gateman's sudden and complete deafness within a month after the accident was consistent with his possession of an unimpaired sense of hearing at the time of the accident. Although he was not a party to the action, he had testified to a fact which, if material to the issue, was so unusual in the natural course of events as to invite inquiry. The jury had the undoubted right to weigh the testimony of the witnesses in this behalf for the purpose of testing the truthfulness of the rest of the gateman's story. Elwood v. West. Un. Tel. Co., 45 N. Y. 549, 6 Am. Rep. 140.

There is another exception in the case, however, which presents a much more serious question. That is the exception taken to the ruling under which the court admitted evidence of the income, profit, or earnings which the plaintiff had derived from his business during the three years preceding the accident. In the interrogatories of plaintiff's counsel, the plaintiff's revenue from this source was called ‘earnings'; but that is mere nomenclature which cannot be permitted to determine the inquiry whether the plaintiff's income had in fact been of such a character as to make it a proper element of the damages which he claimed the right to recover. As bearing upon that branch of the case, it appeared that for a number of years prior to the accident the plaintiff had been a ‘building carpenter contractor.’ He generally took entire contracts for certain amounts, although sometimes he furnished only the labor, at other times only the material, and again both material and labor. The extent of his business was not disclosed, but it appeared that he had a horse and wagon, and employed men. From these facts the inference was clearly permissible that he must have had invested in his business some capital with which to carry out his contracts. The circumstance that he occasionally did some work with his own hands simply emphasizes the fact that his principal occupation seems to have consisted in figuring on contracts, overseeing the work of his employés, and making such arrangements for materials and labor as the nature of his undertakings required. Upon these meager facts we are to determine whether the income of the plaintiff for the three years preceding the accident falls within the category of personal earnings, the loss of which it was permissible...