John R. Thomas, Respondent, v. Union Railway Company of New York City, Appellant

John R. Thomas, Respondent, v. Union Railway Company of New York City, Appellant. Negligence — a passenger leaning a stationary street ca/r to get Ms hat — contributory negligence — credibility of interested witnesses — proof of the earnings' of an injured person. ■Evidence that the hat of a person, seated in an open street railroad car standing upon a car stand, having fallen between the track upon which stood the car in which he was sitting and another track which was used by incoming cars, he alighted from the car, went around its rear end and picked up his hat; that, at this time, he saw no car approaching on the incoming track, a view of which was obscured by a curve and by the presence of cars upon the stand, but that, as he turned, he heard a car coming which overtook him and pinioned his leg between the steps of the two cars, is sufficient to sustain a recovery for the injuries thus sustained against the railway corporation. Where the court charges the jury on the trial of such an action, that if they found that any witness was interested in the result of the action,' they must give that fact such weight as. they thought proper, in determining the weight to be given to the evidence of the witness, and then in response to a suggestion of the plaintiff’s counsel, “That applies as well to the witnesses for the defendant as for the plaintiff,” replied, “ Yes, I.say to all' the witnesses,” it does not by the observation,Yes, I say to all the witnesses/’ include all the witnesses examined' on the trial, but simply all the interested witnesses. If, however, the observation was susceptible of being otherwise construed, that fact should have been specifically called to the attention of the.court—a simple exception to the judge’s observation was not sufficient. Where, in such a case, the plaintiff is a partner in a business which simply employs the personal services of the partners, and whose earnings do not proceed from the use of capital, and are not subject to the'hazard of business ventures, proof of his earnings is Competent upon the question of damages. Appeab by the defendant, the Union Railway Company of Hew York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the’29th day of December, 1896, upon. the verdict of a jury, and also from an order entered- in said clerk’s office on the 19th day of January, 1897, denying the defendant’s motion for a new trial made ripon "the minutes." The jury rendered a verdict in favor of the plaintiff for $7,500. Nathan Ottinger and William N. Oohen, for the appellant. ' Isaac M. Kapper, for the respondent. • [MAJORITY — Cullen, J.:] Cullen, J.: ■This action is to recover for damages for injuries sustained by the ■ plaintiff from having his leg caught and broken between the steps of two cars on the defendant’s road. The case presents no substantial cpestions lint those of fact. The accident to the plaintiff and his injury were not disputed. The defendant’s tracks were on the easterly side of Third avenue, south of One Hundred and Thirtieth street. At the intersection of One Hundred and Thirtieth street' the road turns into that street by a sharp curve to the west. Before the intersection of One Hundred and Thirtieth street is- reached the tracks on.Third avenue curve slightly to the west. Thé tracks were probably located in this position so as to .render the curve at One Hundred and Thirtieth street easier and less sharp. This results in a short, and slight reverse curve on Third avenue. The stand for the cars is on Third avenue, at or below the reverse curve. The plaintiff’s story was that he entered an open car at rest on the stand, seating himself on the west or left-hand sidé of the car; that he struck his hat against the stanchion, knocking it off, and that it fell between the track on which stood the car in which he was sitting and the track to the west, on which an incoming car would move; that he alighted from the car, went around the rear of it and picked up his hat; that at this time he saw no car approaching on the incoming track; that then, as he turned, he heard a car coming, which proceeded with such rapidity as to overtake him and pinion his left leg between the steps of the two cars, breaking it. In this story, he was corroborated by the testimony of a witness who claims to have seen the accident. The story of the defendant’s employees was that the plaintiff lost his hat after the car in which he was riding started forward; that he got down from the car on the west side to regain it, and, while so doing, was caught between the steps of the car on which he was riding and those of a car on the other track, which, at the time, was stationary. This statement was supported by the testimony of two witnesses, the motorman and conductor of defendant’s car. Further claim was made that the plaintiff at the time was intoxicated. This was testified to by the two witnesses mentioned, also by a policeman and a physician who was called in at the immediate time of the occurrence,' The plaintiff, a bystander and the physicians at the hospital to which he was at once taken, testified to the contrary, that the plaintiff was sober. The case was left to the jury under an extremely fair charge, to which the defendant took but one exception. This brief narration of the occurrence shows that the case presented a clear question of fact. If the jury believed the plaintiff’s story, it was certainly permissible that they should find the plaintiff free from negligence, and the defendant at fault. The plaintiff had the right to seek to recover his hat, If, at the time he looked and saw no car approaching, the view of the approaching car being cut off by the turn at One Hundred and Thirtieth street and the presence of the cars on the stand, he was not guilty of negligence, or at least the jury might properly so find. At the same time, the jury might find that, if the motorman on the incoming car had exercised proper care, he would have discovered the presence of the plaintiff on the track- and have avoided running him down. On the other hand, if the jury believed the defendant’s story, plainly-it was in no wise at fault and there could be no recovery, and so the trial judge charged. ' ■ The eye-witnesses to tlie occurrence on the respective sides are equal. in number — two for the plaintiff, two for the defendant. The' counsel for the defendant have on this appeal argued,- with great elaboration and ingenuity, to show from mathematical calculations, • resulting from the position of the curve and the -overhang of the cars, that it is much more probable that the accident happened in the manner claimed by the defendant than in that testified -to by the plaintiff..' We do. not wholly deny the 'force of this argument,, but after all it was one properly to be addressed to and considered by the jury. - The matter is not susceptible of so clear a demonstration as to justify this- court in saying that the verdict of the jury -was against the weight of the evidence. Two minor objections to- this recovery are raised by the appellant’s counsel. The court charged that, if the jury found that any witness was interested in the result of the action, they would give that fact such weight as they thought proper in determining the weight that should be -given to his evidence. The plaintiff’s counsel then said: <£ That, applies as well to the witnesses for the defendant as for the plaintiff,” to which the court responded : “Yes, I say to all the-wit- - nesses.” To this the defendant excepted. The criticism that is now made on this instruction is that It allowed.the jury to find that any or all the witnesses.'for the defendant were interested in the action. We think it is subject tó no such'construction. When the court said: “ Yes, I say to all the witnesses,” it did not mean to assert that all the witnesses, were interested, but that the instruction-applied to all the interested witnesses whether on the plaintiff’s side •or on that of the defendant. I think no one could misunderstand the meaning of the trial court.' If, however, it was susceptible of .misconstruction, it was not sufficient for ■ the defendant merely to -except to the court’s remark. It should have called the attention of the judge directly to the point, and have asked .the court to limit its •charge in such a way as. to prevent the possible danger of its misconstruction. . . We think the evidence of the plaintiff’s earnings was properly admitted. The occupation in which he was engaged, in partnership. with his father and brother, simply employed the personal services, of the parties. Its earnings in no way proceeded from the use of capital, nor were subject to the hazard of business ventures. The-evidence tended to show that the plaintiff, in his services as a gauger,, had been making about sixty dollars a month; that in that employment it was necessary for him to move casks and barrels; that the. shortening of his leg and impairment of its use, as the result of this, accident, would affect him in his calling as a gauger and render him less able to work. The recovery in this case has been very large, much larger than . we should have given him for the injury, but, compared with other-recoveries which we have allowed to pass, we cannot say that it is so great as to justify our interference. The judgment and order appealed from should be affirmed, with costs. All concurred. Judgment and order unanimously affirmed, with costs.