Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Erie County, Sedita, Jr., J. -Negligence.
PRESENT: GREEN, J. P., PINE, WISNER, PIGOTT, JR., AND BALIO, JJ.
Judgment unanimously affirmed without costs. Memorandum: In this action commenced pursuant to the Federal Employers' Liability Act ( 45 U.S.C. § 51 et seq.), defendant appeals from a judgment entered following a jury trial awarding plaintiff $905,800 in damages. Plaintiff slipped and fell during a snow storm while inspecting a freight train in Little Falls. Defendant contends that Supreme Court erred in giving a missing witness charge with respect to defendant's failure to call the supervisor who ordered the inspection. Whether the order came from a supervisor is inconsequential because defendant's dispatcher testified that she was aware of the dangerous conditions and ordered the inspection. Any error in giving the missing witness charge, however, is harmless because that charge did not deprive defendant of a fair trial ( see, Coningsby v. Marabell [appeal No. 2], 214 A.D.2d 949, lv denied 86 N.Y.2d 703).
We reject defendant's contention that the court's interruption of the cross-examination of plaintiff was error. The court properly noted that a witness may not be impeached with the failure to volunteer unsolicited information during an examination before trial ( see, People v. Bornholdt, 33 N.Y.2d 75, 88, cert denied sub nom. Victory v. New York, 416 U.S. 905).
Furthermore, to the extent that the court erred in refusing to admit testimony concerning a job market survey conducted by defendant's vocational rehabilitation expert ( see, Greene v. Xerox Corp., 244 A.D.2d 877, lv denied 91 N.Y.2d 809), that error is harmless ( see, Cotter v. Mercedes-Benz Manhattan, 108 A.D.2d 173, 180). Finally, we reject defendant's contention that testimony concerning the inadequate manpower to assist plaintiff and alternative safer methods was improperly admitted.