Maverick v. . Eighth Avenue R.R. Co. , 2 Trans. App. 125 ( 1867 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The testimony of the plaintiff, Augustus Maverick, was properly received.

The question is not whether he can be a witness for his wife, but whether, being a party, he must be debarred from testifying in his own behalf because his wife is also a party to the action. If the result of the action could only affect his wife or her separate property, and he was merely a nominal plaintiff, having no pecuniary interest whatever in the result, and he should be offered as a witness, the question as to his inadmissibility on account of his marital relation to the real plaintiff in interest would be presented. As having no interest in the result of the action he could not be considered as a party offering to testify in his own behalf or in any other character than as a witness for or against his wife.

But in cases like this before us, the husband has a direct pecuniary interest in the result.

The action was commenced and the judgment rendered before the passage of the act of 1861 giving to the married woman the right to maintain an action in her own name, and as if she were a femesole, for injuries to her person; and declaring that the moneys recovered on a judgment in such action shall be her sole and separate property. As the law stood at the time of the injury on account of which this action was brought, and of the judgment, the husband was entitled to the money which should be recovered in his lifetime for injuries to the person of his wife; and the necessity for making the wife a party to such actions arose from the fact that the damages would survive to the wife if the husband died before they were recovered. The interest of the husband in the recovery was direct and immediate, while that of the wife was uncertain and contingent. He had the right as a real party in interest to be examined as a witness in his own behalf, and the circumstance that his wife might be benefited by his testimony if he should die before recovery, is merely incidental and would not justify the exclusion of his testimony.

It is not claimed that the plaintiff was guilty of any negligence contributing to produce the injury, but it is urged that it was not occasioned by negligence chargeable upon the defendants.

The cases in this court of Brown v. N.Y. Central RailroadCompany (18 N.Y., 408), and Deyo v. N.Y. Central RailroadCompany (34 id.), were decided upon, and reiterate the well settled rule that "passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons."

Applying the rule to the case before us, it cannot be doubted that the jury were authorized, from the testimony adduced by the plaintiff, to find that if the conductor had exercised such a degree of care and diligence, the injury to the plaintiff would not have occurred. He saw the truck behind his car on the same track with it, and approaching it with great rapidity, and it was within 15 or 20 feet of it when he stopped the car, and calling upon the plaintiff to leave it, led or guided her out on to the rear platform where she was struck.

The street was so obstructed by a car to the west of the truck and by a vehicle carrying an iron boiler, and carts to the east of it, that the passage of the truck was confined to the track on which it was running, and it was impossible for those in charge of it to stop or turn it so as to avoid collision within the space between it and the car, at the time the car was stopped. It was the duty of the conductor in the exercise of that foresight as to possible dangers which carriers of passengers are bound to observe, to notice and consider these circumstances; and his conduct in disregarding them, or in stopping his car in view of them, and in bringing a passenger out of it on to the rear platform, cannot be regarded as the exercise of the "utmost care and diligence of very cautious persons."

There was conflicting evidence as to some of these facts, especially as to the possibility of stopping or turning the truck within the fifteen or twenty feet that intervened between it and the car at the time the latter was stopped. The jury had the right to determine these questions, and we are to presume from their verdict, that they adopted the version of the plaintiff's witnesses.

There was no error in the judge's refusal to charge the propositions presented by the defendants' counsel.

The first asserts that "the hook and ladder company," was driven against the plaintiff, and this inaccuracy of statement alone would justify the refusal, but if, as I suppose, the defendants intended to request the judge to charge that, in order to hold the defendants liable, the jury must find that the conduct of the defendants' agent was the cause of the ladder on the truck of the hook and ladder company being driven against the plaintiff, the request was too broad. To establish the liability of the defendants, it was not necessary to show that the conduct of their conductor caused the blow by which the injury was inflicted, but only that it could have been avoided by ordinary prudence and care, and that he did not exercise them.

The testimony in regard to the existence of an understanding between firemen and conductors of street cars, in relation to signals for the regulation of the movements of the cars on the approach of a truck or fire engine, did not establish a custom in the legal acceptation of that term, nor does it appear to have been offered in that view. If there was a general practice and understanding on the subject between such persons, the testimony was relevant to the question as to negligence in the conductor, in showing that such signals, usual, and generally understood, were disregarded by him.

The jury were directed to determine upon the conflicting evidence on this point, as to the existence of such general understanding and practice, and the judge committed no error in refusing to charge as requested, that the testimony of the witnesses did not establish any such custom.

The second and third propositions ignore all obligation on the part of the defendants to protect their passengers against collisions caused by the careless management of other vehicles, which the defendants' agents might have avoided by the exercise of ordinary prudence and care.

The judgment should be affirmed.

All concur except HUNT and GROVER, JJ.

Affirmed.