Stouter v. Manhattan R. Co.

• Decision Date: 02 June 1891
• Citation: 27 N.E. 805,127 N.Y. 661
• Parties: STOUTER v. MANHATTAN R. CO.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 661

27 N.E. 805

STOUTER

v.MANHATTAN R. CO.

Court of Appeals of New York,

Second Division.

June 2, 1891.

Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered on a verdict, and also affirming an order denying a motion for a new trial. Action for personal injuries, caused, as alleged, by the negligence of the defendant. On December 31, 1887, the plaintiff was a passenger upon a train operated by the defendant going north on the main branch of its elevated railroad in Third avenue. At Thirty-Fourth street, a side track running to the ferry at the foot of that street is connected with the main line by means of a curve. As the car in which plaintiff was seated passed over the frog at the junction of the two lines at Thirty-Fourth street, it was run into by an engine on the side track, and she was injured by the collision. Further facts appear in the opinion.

Samuel Blythe Rogers, for appellant.

Martin J. Keogh, for respondent.

VANN, J., ( after stating the facts as above.)

The defendant claims that the trial court erred in allowing evidence to be given by the plaintiff that, after she was injured, a stop-block was placed upon the side track as a precaution against further accidents. A careful inspection of the record, however, fails to show any evidence of that kind. The nearest approach to it was when the engineer who operated the engine that collided with the train was on the stand as a witness for the plaintiff. On being asked if a diagram shown him correctly represented the scene of the accident, he replied that it did, with one exception. When asked to state the exception he answered: ‘There is a portion of a chock-block here at present,’ obviously referring by ‘here’ to the map, which was the only subject of inquiry. The defendant's counsel moved that the answer be stricken out, without stating any ground, and took an exception to the denial of his motion. The next question that was answered by the witness was put by the trial justice, who asked: ‘What is the difference between its state on the 31st of December and [the] state of it as represented on that diagram?’ The witness answered, under objection and exception: ‘That represents a chock-block as being there.’ The object of this testimony was simply to prepare the way for the introduction of the map, and the substance of it was that there was a chock-block represented on the map that was not on the track at the time of the accident; but there was no evidence that a chock-block was placed on the track after the accident. Before the map was put in evidence the representation of the stop-block was struck off by direction of the trial judge, who, in giving the direction, said: ‘If it is intended to show that any change has been made there now, that is inadmissible; and, not being susceptible of direct testimony, the court does not think it fair that it should get in indirectly as marked on the diagram, so that will be stricken off.’ While the course pursued at the trial may have suggested to the jury that a block was placed on the track after the accident, there was no evidence before them upon the subject; and it cannot be presumed, under the circumstances, that they were influenced by that which was merely suggested, but not proved. Questions excluded upon objection frequently suggest something that the jury have no right to consider; but this, in the absence of persistence amounting to abuse, is not a ground for reversal, because they are presumed not to have considered it. If a party fears that they may be influenced by anything outside of the case, he should ask that they be instructed to disregard it. Gall v. Gall, 114 N. Y. 109, 122, 21 N. E. Rep. 106; Holmes v. Moffat, 120 N. Y. 159, 24 N. E. Rep. 275. After the plaintiff had rested, the same witness was called by the defendant, and gave evidence in its behalf as to his efforts to stop the engine by applying the brakes and opening the throttle. On his cross-examination, after proof had been made without objection that there was no chock-block on the side track when the accident happened, he was asked: ‘If a stop-block had been there, would your train have collided with the Third-Avenue train, in you opinion?’ A general objection was interposed and overruled, when the witness answered, ‘I don't think it would.’ This ruling is challenged by the defendant, upon the ground that no proof was previously made that the side track had been found by experience to be unsafe, or that chock-blocks were in practical use for railway junctions. This question, however, is not before us, because it cannot be raised by a...