Opinion
December, 1918.
Present — Jenks, P.J., Thomas, Mills, Rich and Putnam, JJ.
Plaintiff's counsel in his opening made an inexcusable statement that since this accident defendant's crossing bell had been changed. Afterwards, however, defendant's photographer by mistaken identification introduced his pictures showing the later form of bell. Cross-examination exposing the photographer's error then legitimately brought this change of bell before the jury. Otherwise such improper reference to changes after the accident would have required a new trial. Upon the issue whether the automatic bell was sounding as the train approached this crossing, plaintiff introduced evidence of the bell's failure to ring when trains had passed before this accident. On the question of the uniformity of mechanical devices, evidence of prior failures is competent. ( Auld v. Manhattan Life Ins. Co., 34 App. Div. 491; affd., 165 N.Y. 610; Chamberlayne Ev. § 3184.) Nor was it error on cross-examination to ask this engineer regarding Penal Law (§ 1985), which requires a whistle to be sounded eighty rods from a crossing, under penalty of punishment for a misdemeanor. The knowledge or ignorance of such obligation bore upon both the subjective sense of duty by the engineer, as well as a possible motive in his testimony. No exception being urged as to the scrupulously fair charge, or the amount of the verdict, the judgment and order are unanimously affirmed, with costs.