Opinion
March 7, 1906.
Lewis E. Carr, Jarvis P. O'Brien and Martin L. Murray, for the appellants.
G.B. Wellington, for the respondent.
The trial judge, at the request of the defendants' counsel, substantially charged the jury that they were authorized to find the rule suggested by the plaintiff a necessary and proper one for this case, if the proof showed that such rule was in force on some other road, or if it showed that it was practicable and reasonable to provide against such an accident, or if the propriety and necessity of such particular rule was so obvious as to make it a question of common experience and knowledge. Such charge must be deemed to furnish the law of this case, and also seems to be in harmony with the decisions upon that subject. ( Larow v. N.Y., L.E. W.R.R. Co., 61 Hun, 11; Koszlowski v. American Locomotive Co., 96 App. Div. 40, 44; Berrigan v. N.Y., L.E. W.R.R. Co., 131 N.Y. 582, 585.)
Applying such law to the facts of this case and it seems clear that the jury were authorized to find that there was a reasonable and practicable rule which the defendants could and should have furnished for use in this Mechanicville yard, and that their omission to promulgate such a rule was negligence which contributed to the death of the plaintiff's intestate. Drake, an expert witness sworn on the part of the plaintiff, testified that the rule suggested by the plaintiff's counsel would have been a reasonable and practicable one under which to have conducted such work in the yard as the deceased was engaged in when he met his death. He also stated that such work was, in actual practice, conducted by the employees in different yards where he had worked after the method suggested in the rule, although no such rule was actually promulgated by any of the companies for which they worked, thus indicating that such method was not only a practicable one but was also a reasonable and necessary method. This witness had worked for years in many different yards where similar work was carried on, and for some time as a manager of such yards, and was evidently competent to judge whether the rule which the plaintiff claimed should have been adopted was a reasonable and practicable one for the protection of the men engaged in such work; and if the jury correctly reached the conclusion that such witness was correct in that respect, it was for it to further determine whether the defendants had performed their full duty to the deceased in neglecting to provide any rule whatever upon that subject.
I am of the opinion that, under the proofs in this case, the jury were authorized to find the defendants negligent in not providing such a rule as was suggested on the part of the plaintiff upon the trial of this case.
It is urged by the defendants' counsel that the evidence of the plaintiff's witness Drake does not really furnish the information which I have above claimed for it. From a careful examination of such evidence as it appears on this record, I am satisfied that such is its fair import and meaning; and it must also be borne in mind that no contradiction of such evidence is given, and that no skilled evidence has been offered by the defendants to show wherein such a rule would have been either impracticable, unreasonable or useless.
It is urged, however, that this witness was not competent as an expert because the yards in which he had worked did not have switches connecting at both ends with each other. But the work of going in between the ends of cars and coupling with a link or chain and pin on such switches was usual in the yards and in all essential features the work was the same except, perhaps, the danger was greater and a stringent rule more needed in the yard in question than in one where an entrance could be made at only one end.
It is also urged that error was made on the trial by the judge refusing to strike out on the defendants' motion the answer of such witness. On the trial the plaintiff's counsel put to such witness a supposed rule, and asked him whether it would be a practicable rule for use in a freight yard. He answered: "Yes, I suppose it would be a practicable rule, but understood by railroad men." The plaintiff's counsel asked to strike out the latter part of this answer, "but understood by railroad men," as not responsive, and that the rest remain. The court replied: "I strike out all except his answer stating that that would be a practicable rule." By this the court meant that he retained what the plaintiff's counsel asked to have retained, and struck out what he asked to have stricken out. To this the defendants' counsel excepted, and then asked to strike out so much of such answer, viz., "I suppose it would be a practicable rule," on the ground that it is not a statement of fact. This motion was denied and defendants excepted. He strenuously urges that that was reversible error. I think not. The most that was asked from this witness was his opinion. He was testifying as an expert, and hence his opinion was properly received. The trial judge did not "transform a supposition into a fact," but merely treated the phrase used by the witness as an expression of his opinion.
The defendants' counsel further urges that the injury which the deceased received in this case resulted from a risk that was plain and obvious, and hence it was one for which no negligence can be predicated against the defendants.
By section 3 of the Employers' Liability Act (Laws of 1902, chap. 600), under which this action is brought, the question of whether or not the deceased assumed the risk, under circumstances similar to these, is no longer one of law. It must be left to the jury, and the trial judge in this case left that question to this jury. The only question, therefore, left to this court in this connection is whether we should reverse the finding of the jury upon that question. If the risk of the accident which killed the deceased was an obvious one, and was in fact assumed by him, he cannot recover. If it was not assumed by him he is not thereby barred from recovering. I am of the opinion that we should not disturb the verdict upon this point. An analysis of the evidence is not needed in an opinion. Suffice it to say that it is not entirely certain that the deceased had such a knowledge of every detail of the method of carrying on that work, and of the situation under which they were working, as to make the risk obvious to him. The burden was upon the defendants to prove it, and so I conclude that we should not now disturb it.
I discover no errors that call for a reversal of this judgment. I recommend, therefore, that it be affirmed, with costs.
As to the order granting to the plaintiff an extra allowance of costs, I am of the opinion that it should be reversed. There is nothing extraordinary or unusually difficult in this case — nothing to bring it within the provisions of section 3253 of the Code of Civil Procedure.
Order granting extra allowance reversed. Judgment and order denying motion for new trial modified by striking from the judgment the amount of the extra allowance, and as so modified unanimously affirmed, with costs.