Hudson v. Rome, Watertown & Ogdensburg Railroad , 73 Hun 467 ( 1893 )

HARDIN, P. J.

Upon the trial no serious question was made-as to the intestate’s freedom from contributory negligence, nor do-we understand any question is made in the argument before us~ That question was properly submitted to the jury, and we must assume that their verdict finds that the deceased was free from, contributory negligence, upon evidence sufficient to establish that, fact.

The main question litigated at the trial, and pressed upon us in the argument, relates to the defendant’s .alleged negligence-Plaintiff’s position at the trial was that the accident occurred by-reason of the collapse of the crown sheet of the engine, and that it had been burned prior to the occasion when the deceased entered upon it for the trip when his life was lost. According to the testimony of Grower, there were two full gouges, at least, of water-in her, and that from the time he took charge of her until she-collapsed the crown sheet was covered with water all the time. Shepard, the hostler, who had charge of her while she was in the-yard at Watertown, testified that' he kept water in her boiler while-she was there; and from this evidence it is insisted that the crown sheet must have been burned before Shepard took charge of her, and that she was in that burned or defective condition while she-was in the yards. There was some evidence tending to show that the top of the crown sheet had a bluish cast on the under side,, which extended along her length, and could have been discovered upon careful inspection had for that purpose. Defendant gave-considerable evidence of the condition of the crown sheet after the-accident, and the evidence tended to show that an engine with its, crown sheet burned to the extent of this one could not be made to run at all, and that one with the crown sheet slightly scorched, might be made to work for a short time, and that when the sheet is scorched the soot leaves the fire side of the sheet, and that such-, was the condition of the sheet just after the accident; and that the scorched area was some 32 inches in width from the front of the firebox, and extended the whole length of the sheet, gradually diminishing, until at the back end of the sheet the scorched area. was only 16 inches in width. When thé plaintiff rested the defendant moved for a nonsuit, which was denied, and when the evidence was closed the defendant again moved for a nonsuit, and an exception was taken on each occasion; the court holding that the question relating to the defendant’s negligence was one of fact for the jury. The defendant contends that the exceptions present error, and that the evidence clearly indicated that the crown sheet was burned at the time of its collapse, and not at a prior time, and that, therefore, the verdict is against the evidence. We are of the opinion, however, that whether the engine was in a defective condition •or not at the time when it was placed in the hands of Grower and the deceased by reason of the fault or negligence of the defendant was a question of fact which was properly submitted to the jury. The charge was very elaborate, carefully presenting the evidence relating to the question of the defendant’s negligence to the jury; •and the judge repeated the question for the jury’s determination in several different expressions in commenting upon the evidence. He said:

“But I leave It, as I have left it, for the jury to say whether the boiler was •In such a condition when it left the Watertown yard as that the failure of the defendant to discover it was negligence; that is, whether, in the exercise of ordinary, reasonable care, they ought to have discovered it."

Again, he says:

“I cannot say what the jury would have a right to find the condition of the ■engine was when it left Watertown. I simply leave it to the jury to say what its condition was. It is not for me to say. When they have determined what its condition was, I leave it to them, as a question of fact, to say whether the defendant, in just the condition it was in, was guilty of negligence in not having discovered it before it left the Watertown yard. I will say that their duty was to exercise reasonable care in discovering defects, and nothing more. They were not under obligation to make any very extensive inspection of it, unless their attention was called to it. They were to use reasonable care in discovering defects; and if, by the exercise of reasonable care, they ought to have discovered it, then they were guilty of negligence in not discovering it, and sending it out on the road in such a condition.”

We think the rulings and charge of the trial judge were as favorable to the defendant as it was entitled to, and that the verdict is supported by the evidence. Buck v. Webb, 58 Hun, 188, 11 N. Y. Supp. 617; Stevenson v. Jewett, 16 Hun, 210; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590. It has been repeatedly held that where the question of negligence is presented on conflicting evidence, and where different inferences may be drawn by the jury from such evidence, the trial court must submit the question to the jury. Kain v. Smith, 89 N. Y. 376; Bailey v. Railroad Co., 139 N. Y. 302, 34 N. E. 918. In the case just cited the court said:

“The evidence of the negligence of the defendant is not direct and positive; hut this is an infirmity which attends the investigation of facts in courts of justice in very many cases. * * . * We are unwilling to say in this case that there was no evidence from which a just inference might not be drawn by the jury that the defective condition of the brake existed when the car left Norwood, and that there was a negligent failure to discover it at that point."

We think the principle announced in the opinion which we have just quoted is applicable to the facts of the case now presented at bar.

Criticism is made by the learned counsel for the appellant in regard to the testimony of Grower on certain essential features of the case. That criticism may be answered by a remark of O’Brien, J., in Hastings v. Insurance Co., 138 N. Y. 479, 34 N. E. 289, which was as follows:

“However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force, and effect of such testimony is for the jury.”

In the argument submitted by the learned counsel for the appellant to us it is not claimed that any error was committed in the course of the charge, or in dealing with the requests, which were numerous, following the body of the charge. We have discovered no error in the progress of the trial warranting us in overturning the verdict of the jury. Judgment and order affirmed, with costs. All concur.