Goll v. Manhattan Railway Co. , 24 N.Y. St. Rep. 24 ( 1889 )

By the Court.—O’Gorman, J.

The plaintiff, while walking on the sidewalk of the Bowery, immediately under the track of defendants’ elevated railroad, was struck by a heavy piece of metal, which fell from one of defendants’ cars, passing above. This piece of metal was part of the cylinder of the defendants’ locomotive. This cylinder had suddenly burst, scattering numerous fragments on the sidewalk.

The jury returned a verdict for the plaintiff, and the defendants appeal, on the ground of various alleged errors committed at the trial.

The learned trial judge held, without objection, that there was no evidence of any contributory negligence on the part of the plaintiff, and that the plaintiff had no right to expect from the defendants the same degree of care in protecting him from injury, that he would have been entitled to receive if he had been a passenger on one of their cars.

The trial judge also held, that from the nature of the accident itself, negligence on the part of the defendants might be inferred, and on this ground, chiefly, denied the defendants’ motion for dismissal of the complaint, made at the close of the plaintiff’s evidence.

The trial judge was justified in so ruling, on the authority of Cosulich v. Standard Oil Co., 55 Super, Ct., 384, 394 ; Gerlach v. Edelmeyer, 47 Ib., 292 ; Caldwell v. N. J. Steamboat Co., 47 N. Y. 282.

The exceptions to the admission of certain testimony of medical experts, as to the nature and extent of the injuries received by the plaintiff, and as to the reasonable certainty that the ill effects of these injuries would be permanent, were, in my opinion, not well taken. There is, not uncommonly, some difficulty experienced in confining the answers of such witnesses to the precise question put to them, and they are apt, perhaps from the necessity of the case, to include in their answers, statements, considerations, and analogies, not always pertinent to the matter in litigation, or responsive to the question put to them. But their testimony is only as to their own opinions, which it is the province of the jury to consider, as far as it may be applicable to the case on trial, and under the instruction of the court, when such instruction may be necessary. I see no reason to believe that the testimony of the medical experts in this case in any degree misled the jury, or did any injustice or injury to the defendants.

As to the defendants’ exceptions to the judge’s charge, and to his refusal to charge as requested :

■ The defendants’ counsel, apprehending that a part of the charge might convey the idea that it was the duty of the defendants to build a. shield under their superstructure, asked the court to charge “ that the defendants were not obliged to build a shield or screen under their superstructure, and the jury are not to consider that in determining the question of negligence.”

The court refused to charge, except as already charged, and the defendants’ counsel excepted.

This request seems to have been unnecessary, for, in fact, the court had previously, in general terms, but with sufficient clearness, charged on the subject as far as the defendants had a right to require, in the following words : “ But they were not bound, as against persons who were not passengers, to add to the construction and equipment of their road and its cars the best and most select safeguards which human skill and ingenuity from time to time have invented and brought into use to prevent accidents. Such rule applies only to passengers. As against all other persons who had a right to use the streets in common with them, and the plaintiff comes within this rule, they discharged their duty if they adopted that which, under all the circumstances, and in view of the peculiar structure of the road, inclusive of the danger to be apprehended, was reasonably adequate and safe. If they thus discharged their duty under all the circumstances, they are not to be held liable solely by reason of the fact that at the time and place of the accident they had no shield or screen under the structure."

A charge to the jury must be considered, as to its purpose and effect, not piecemeal, in separate parts, but as a whole, and if, taken as a whole, it conveys to the jury the correct rule of law on the given question, the judgment will not be reversed, even although detached sentences may be erroneous. Caldwell v. N. J. Steamboat Co., supra, page 286.'

It is not necessary, however, to invoke the aid of this opinion of the court in the present case.

The part of the charge above set forth, following, as it did, the part objected to by the defence, sufficiently explained the meaning and intention of the court, and prevented any possible interpretation, to the detriment of the defendants, not sustained by the evidence.

An examination of the whole case has convinced me that no substantial error has been committed at the trial, and that the judgment -should be affirmed, with costs.

Sedgwick, Ch. J., concurred.