Carley v. New York, Ontario & Western Railway Co. ( 1888 )

Landon, J.

The facts in this case are substantially the same as in O'Neill v. Railway Co., 45 Hun, 458. The damages now sought to be recovered were caused by the same fire. We follow the decision made in that case, that the verdict is warranted by the evidence. The witness Gray was asked: “Were the regular spark-arresters used upon the West Shore road at that time?” The appellant objected, as assuming a fact not proved, as immaterial, and that the witness was not shown to be an expert. This objection was overruled, and the witness answered, “Yes.” He was next asked: “Were the spark-arresters used on the West Shore road an improved method over the netting used on this road for arresting and confining sparks ? ” This was objected to upon the same grounds as above, and the objection overruled. The witness answered, “Yes.” The evidence was material. As to the competency of the witness as an expert, he testified: “I am yard-master or foreman in the shops of defendant, and was in April and May, 1884, (about the time of the fire.) It was a part of my duty to examine all engines arriving and departing from the engine-house. It was my duty to examine the smokestacks, spark-arresters, and ash-pans. I examined the smoke-stacks, sparkarresters, and ash-pans of all engines that came into the round-house.” We think the court was justified in holding that he was an expert with respect to spark-arresters. The objection - that a fact was assumed not proved, namely, the existence of regular spark-arresters, simply went to the-order of proof. Whether the existence of that appliance was not well known, and needed proof, or was so well known as to be naturally assumed as of course, was a matter as to which the trial judge could best decide. At a subsequent stage of the trial the kind of spark-arresters used upon the West Shore road was fully described by a witness on the part of the defense. We do not think any error was committed in this respect. Assuming that the witness was an expert, we think it was competent for him to give his opinion with reference to the comparative merits of the spark-arresters used upon the two roads. The plaintiff had a right brshow, if she could, that the appliance-used by the defendant was not a reasonably safe and suitable appliance, and to that end evidence that better appliances were in common use upon another road in the same vicinity was competent. Other testimony was given respecting the spark-arrester, and the court finally, at the request of the defendant, instructed the jury that “the proof shows that the spark-arrester used by the defendant is of the most approved kind known.” We must assume, therefore, that the error, if any, in receiving the testimony of Gray was cured. The defendant failed upon the ground that it was negligent in leaving so-much combustible rubbish near plaintiff's property on its road liable to be-ignited by the sparks emitted from its engines. It is true, there are cases in which the courts have held that where erroneous evidence has been once received under exception the error is not cured by the instruction to the jury to disregard it. Erben v. Lorillard, 19 N. Y. 299; Arthur v. Griswold, 55 N. Y. 400. But these are cases in which it was plain that the erroneous evidence produced an erroneous verdict. We are satisfied that the verdict would have been the same if this evidence had not been offered, and we are instructed by the Code not to disturb it. Section 1003. The court sustained the objection to the question asked by the defendant of its witness Minsh ull: “ Did Mr. Gray know anything about an engine or handling one?” The object of this question was to prove Gray’s incompetency as anexpertupon the subject of sparkarresters. Usually a witness’ competency is proved by himself; and the opinion pf another witness that he does not know anything about kindred objects is plainly incompetent. The objection to the question calling for the discussion by the convention of master mechanics of the subject of sparkarresters was properly, sustained. The j udgment and order must be affirmed,, with costs.