Schutz v. Union Ry. Co. of New York City

• Decision Date: 15 February 1905
• Citation: 73 N.E. 491,181 N.Y. 33
• Parties: SCHUTZ v. UNION RY. CO. OF NEW YORK CITY.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 33

73 N.E. 491

SCHUTZ

v.UNION RY. CO. OF NEW YORK CITY.

Court of Appeals of New York.

Feb. 15, 1905.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Friedrich Otto Schutz against the Union Railway Company of New York City. From a judgment of the Appellate Division (84 N. Y. Supp. 1145,88 App. Div. 615) affirming a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed.

Charles F. Brown, Bayard H. Ames, and Henry A. Robinson, for appellant.

William H. Leonard Edwards, for respondent.

BARTLETT, J.

This action was brought to recover damages for personal injuries. The plaintiff on the 24th day of May, 1899, was a conductor in charge of an open car on the defendant's railway. The accident happened on Westchester avenue, between Glebe avenue and Avenue B, in the borough of the Bronx, on a curve varying from 6 1/2 to 8 1/2 degrees, and the grade descending toward Avenue B. was from 1 to 2 per cent. The car was running from Glebe avenue to Avenue B. at a speed of between seven nd eight miles an hour, when it suddenly left the track; the front platform lying in the ditch, and the rear end remaining on the track. The front platform lying in the ditch, and the rear end remaining on the track. The car ran 18 or 20 feet after it left the rails. At the point of deralilment the track was found to be 1 3/4 inches out of gauge; that is, it had spread. On examining the running gear of the car, it was found that the right forward wheel was worn, and the flange thereon chipped. It is claimed by the plaintiff that the cause of the accdient was the spreading of the rails, and the defect in the forward wheel. The motorman testified that he was on the front platform of the car, had no power on at the time it left the track, and that the position of his brake was under control. He also stated that his speed was about seven or eight miles an hour. The plaintiff's injuries were a Potts fracture of the ankle, and a lacerated would of the sole of the foot. He was confined to the hospital four weeks, and was obliged to use crutches in walking for about five months. He recovered a verdict for $1,500. The Appellate Division affirmed the judgment without opinion, one Justice dissenting.

The learned counsel for the defendant and appellant rests his argument for the reversal of this judgment upon two rulings of the trial judge. When the motorman was on the stand he was asked this question: ‘Assuming that a car is running at the rate of seven or eight miles an hour, on a curve of seven or eight miles an hour, on a curve of the degree or radius of the curve on Westchester avenue, between Glebe avenue andAvenue B, at the point where your car left the track on the evening of May 24, 1899, would it, in your opinion, be possible for a car, under those circumstances, to leave the track, if the track were properly laid and in gauge, and the running gear of the car in order?’ This question was objected to as incompetent and speculative, and that it is a question for the jury to determine after they have heard all the facts, and it is not for the opinion of the witness. This objection was overruled, and exception taken. The additional question was then asked. ‘Would it be posible under these circumstances? A. I don't think it would, sir.’ It is claimed by the plaintiff that this second question was not objected to, but it was clearly within the scope of the objection to the main question. It was simply a suggestion to the witness to proceed after the original objection had been overruled. Even if the objection were not held to apply to the second question, it falls clearly within the rule that where, upon a trial, an objection has once been distinctly raised and overruled, it need not be repeated to the same class of evidence, and an omission to repeat it is not a waiver. Dilleber v. Home Life Ins. Co., 69 N. Y. 256, 25 Am. Rep. 182;Church v. Howard, 79 N. Y. 415;Stephens v. Ely, 162 N. Y. 79, 56 N. E. 499. The motorman was here treated as an expert, and asked to answer the question which was within the province of the jury to determine on the facts placed before them. It appears from his own evidence that he had been a motorman for four years in the employ of different companies, and it was on this rather brief experience that ...