Opinion
April Term, 1897.
Frank Hiscock, for the appellant.
William S. Jenney, for the respondent.
Extensive evidence was given during the trial of the acts, doings and character, as established among railroad men, of Brown, with a view of furnishing ground upon which the jury might find that Brown was incompetent as an employee, and that his incompetency was known to the defendant, and that it was, therefore, negligent in keeping him in its employ. During this trial considerable evidence was given from the minutes of the trial of the Park case.
The evidence introduced by the plaintiff of Brown's incompetency was not sufficient to authorize the admission of testimony of his general reputation for the purpose of showing that the defendant was negligent in not knowing that he was incompetent. Much of the testimony related to acts of Brown and to his reputation years before the accident.
Van Auken's testimony as to his reputation related to his reputation ten or fifteen years before the accident, when he resided in the city of Schenectady, when he was an attendant at school and at Sabbath school and before his employment by the defendant. His reputation at this time and at this place was most unlikely to be known by the defendant, and negligence cannot be imputed to it for not knowing his reputation then and there acquired. The evidence was received over the defendant's objection and its reception was error. The testimony related to acts and reputation which were too remote.
The evidence of the witness Dean, given upon the former trial, was read in evidence. Dean testified that he had known Brown about twelve years, and that about that time he came on to the railroad on the Troy and Schenectady branch as flagman and that he was on the witness' train as a substitute sometimes. The witness testified that he had seen Brown since that time "at long intervals" and that he had heard him talked about. "Q. Have you heard him talked about as to his mental characteristics? A. 1 have, that is, not from his mental characteristics, but from a handle or nickname. Q. You have heard him talked about then as to his mental characteristics? A. No, not as to his mental characteristics; have heard a name given to him. Q. Have you heard a name given to him generally by railroad men? A. I have. Q. You may tell about this nickname, whether you have heard him generally called by any name, if so, what?" Defendant objected to the question as "immaterial, incompetent, not competent in the way of notice to the defendant of any disqualification or incapacity in Brown." The objections were overruled and the defendant took an exception. The witness answered, viz.: "Crazy Brown. He was not called by that name back at the time he worked for me; not that I remember. Q. When do you know of his being called by that name; for how long a time?" This was objected to by the defendant and the court observed: "Take it all under objection. A. I don't now distinctly remember; but from time to time I have heard it spoken of; probably as far back as eight or ten years ago; it might be longer. Q. Since that time you have heard him generally talked about as `Crazy Brown' among railroad men?" The same objection was made to this, and the court said: "You object to the whole and exception." The answer was: "Among railroad men."
The witness Brookings testified that he knew Brown and that he had known him ten or twelve years and that he was employed at DeWitt, and while he was there the witness had a good deal to do with him in a number of ways, and the witness added: "He was usually called `Crazy.'" That was objected to, but no ruling or exception was taken at the time of the objection. Subsequently the witness testified: "I know he was called a `Rattlehead.'" This was objected to, and a motion was made to strike it out, and the case does not disclose what became of the motion. No exception was taken at that point.
The witness Peter Gleason, who had been in the employ of the railroad some thirty-five years prior to the strike, which occurred in 1890, testified that he was somewhat acquainted with Brown, and that he had worked on the witness' train "two or three times in all. * * * Q. By what name was he known?" This was objected to on the ground that it is improper, incompetent and immaterial. The objections were overruled and the defendant took an exception. "A. Knew him as `Crazy Brown.' Q. Since you have known him what has been his general reputation as to mental condition? What was his general reputation as to mental capacity?" The question was objected to on the grounds mentioned and on the further ground, "the witness is not an expert, upon the ground it appears the witness has not seen him but once in eight or nine years." The objections were overruled and an exception was taken. The answer given by the witness was "Too wild; too rattleheaded; couldn't depend really upon him, that is, without you saw him." The defendant immediately objected again to the evidence, and moved to strike it out on the grounds stated in the objections to the questions, and the court declined to strike it out and the defendant took an exception. Somewhat similar evidence was given where no exceptions were taken.
At the close of the body of the charge the court was asked to charge "that the evidence of the names that Brown was known or called by, and the reputation that it is testified he had, neither of them are to be considered by the jury as proving that previous to the accident in question he had been guilty of any negligence whatever in the discharge of his duties." In response thereto the court said: "I charge that. Those things are offered upon the question of notice; they are received upon the question of notice, as I stated in my charge." Thereupon the court was asked "to charge the further fact that the jury must find Brown to have been guilty of specific negligence in the discharge of his duty as flagman or brakeman before the night in question, to charge the defendant with negligence." Thereupon the court replied: "Of course, if they rely upon specific acts at all, they must be acts prior to this accident." Some further colloquy occurred between the counsel and the court, and the court observed: "As a general proposition, I suppose if you can prove that a man was a lunatic or idiot, that would be competent upon the fact whether he was a competent and proper employee, although he had not worked for a railroad, and had not been guilty actually of specific acts of incompetency." The court charged the jury affirmatively that "In determining whether it was negligent on the part of the company to keep him, [the jury] are not confined to those things alone, but they may consider, in addition to any acts of negligence he has been guilty of, any other evidence in the case bearing upon his mental condition or his competency." As soon as that language fell from the court, the counsel for the defendant said, "So far as that is concerned, I except."
We think the reception of the evidence to which we have referred, in view of the manner in which it was dealt with by the learned trial judge, and the exceptions which we have stated in respect to the receiving of the evidence and the charge in respect thereto, to which exceptions were taken, present error.
The jury was not left uninfluenced by the evidence of nicknames and appellations which had been applied to Brown. The reception of the evidence was, therefore, prejudicial error. ( Marrinan v. N.Y.C. H.R.R.R. Co., 13 App. Div. 439: Cameron v. N.Y.C. H.R.R.R. Co., 145 N.Y. 400.)
The exceptions to which we have referred present different questions from those considered by the court in Park v. N.Y.C.R.R. Co. (85 Hun, 184).
The foregoing views lead to the conclusion that a new trial should be ordered.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to abide the event.