Anna Fisher, Respondent, v. Union Railway Company of New York City, Appellant

Anna Fisher, Respondent, v. Union Railway Company of New York City, Appellant. Negligence — running a car at the rate of fifteen miles an hour in a dense fog into a wagon—a statement by the motorman that he discovered, and attempted to avert, the peril as soon as possible does not require a nonsuit — who is competent to state the speed of the car. In an action to recover damages for personal injuries sustained by the plaintiff while a passenger on one of the defendant’s cars, which, while traveling through a dense fog at a speed of fifteen miles an hour, ran into a wagon on the track ahead of it, the fact that the motorman testified that he discovered the peril as soon as possible and did everything in his power to avert the collision, does not require the court to nonsuit the plaintiff, as the credibility of the motorman is a matter for the consideration of the jury, and because, if it had not been for the excessive speed of the car, the peril, even if not sooner discovered, might have been successfully averted. A passenger upon the car on the occasion in question, who was a civil engineer of eleven years’ experience, and who was at one time connected with the railroad business and had been accustomed to time the speed of cars by a watch, is competent to testify to the speed of the car on the occasion in question. Appeal by the defendant, the Union Railway Company of New 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 West-Chester on the 19th day of December, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes. W. J. Townsend and Henry A. Robinson, for the appellant. Charles Pope Caldwell [Maurice E. Connally with him on the brief], for the respondent. [MAJORITY — Hirschberg, J. :] Hirschberg, J. : The plaintiff was injured while a passenger on one of the defendant’s cars, which was run through a dense fog into a wagon on the track ahead of it. There was evidence that the car was running at the time as rapidly as fifteen miles an hour. The only exceptions taken by the defendant were to the refusal of the learned trial justice to nonsuit the plaintiff, and to the evidence referred to as to the speed of the car. Neither exception is availing. As to the first it is urged that there was no negligence established, inasmuch as the motorman according to his evidence discovered the peril as soon as possible and did everything in his power to avert the collision. This argument overlooks the fact that his credibility was a proper consideration for the jury. Moreover, the negligence asserted consisted in the speed of the ear under foggy conditions, but for which the peril even if not sooner discovered might have been successfully averted. The question was submitted in a charge which was favorable to the defendant,.and which included every request made by it. The witness who testified to the speed of the car was a passenger on the occasion in question, a civil engineer of eleven years’ experience, at one time connected with the railroad business and accustomed to time the speed of cars by the watch. That such a person was competent to testify to the speed of a car has been frequently held, among other cases, in Salter v. Utica & Black River Railroad Co. (59 N. Y. 631) ; Northrup v. New York, O. & W. R. Co. (37 Hun, 295, 299) ; Scully v. New York, L. E. & W. R. R. Co. (80 id. 197) ; Strauss v. Newburgh Electric R. Co. (6 App. Div. 264) ; Penny v. Rochester R. Co. (7 id. 595), and Garduhn v. Union Railway Co. (50 id. 602). The damages cannot be regarded as excessive, notwithstanding that there was no proof of permanent injury. The judgment and order should be affirmed. Present—Goodrich, P. J., Bartlett, Woodward, Hirschberh and Jerks, JJ. Judgment and order unanimously affirmed, with costs. ■