#### Regina Bardelli, as Administratrix, etc., of Luigi Bardelli, Deceased, Respondent, *v.*Pittsburg Contracting Company, Appellant.

Second Department,

June 26, 1914.

Blaster and servant — negligence — death caused by fall of rock in tunnel — evidence justifying recovery — assumption of risk — excessive verdict —trial — exhibiting crippled child to jury.

Action to recover for death caused by the fall of a rock overhanging a tunnel which was being constructed by the defendant, which had been given actual notice that the rock was dangerous and was being loosened as blasting continued. Evidence examined, and held, that a judgment for the plaintiff should be affirmed, if she stipulated to reduce the recovery.

The decedent, employed in the tunnel, did not assume the risk where the danger was discoverable and was actually known to the employer prior to the accident.

A verdict of $16,000 should be reduced to $12,000 where the plaintiff was permitted to exhibit before the jury the crippled body of a young child in order to excite their feelings.

Appeal by the defendant, Pittsburg Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th. day of December, 1913, upon the verdict of a jury for $16,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

*John Ambrose Goodwin [Charles J. Katzenstein*with him on the brief], for the appellant.

*Thomas J. O’Neill,*for the respondent.

Per Curiam:

The testimony amply shows that the defendant, through its superintendent, knew of the unsafe conditions from this rock *46overhanging the tunnel for several days, and imperiling the men having to pass under it. It is not merely a presumption arising from the fact that this rock remained unsupported while it was being loosened as the blasts continued, but because of actual warnings and notifications by the men who. worked there, confirmed by the city engineer.

The matter of contributory negligence was submitted to the jury. The testimony raised an issue whether scaling was any part of plaintiff’s intestate’s duty. Against this verdict we cannot hold that deceased was negligent in going on with the work. Neither did he assume the risk where the danger had been discoverable and was actually made known to the employer prior to such injuries. (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.)

The exhibition of the crippled child to the jury is assigned as reversible error. The diversity in decisions admitting testimony as to family circumstances is pointed out in Sedgwick on Damages (Vol. 2 [9th ed.], § 580). *Lockwood*v. *N. Y., Lake Erie & Western R. R. Co.*(98 N. Y. 523) makes it competent to have the number and ages of dependent children stated, and probably their conditions, including physical defects. But to keep before the jury the crippled body of a seven-year-old child is different. A witness could without difficulty describe the helpless state of such a defective child. If it was ground to reverse because a jury had shown to it a picture of a deceased wife *(Smith*v. *Lehigh Valley R. R. Co.,*177 N. Y. 379), the exhibition of this afflicted boy, mute, helpless and deformed, which the jury were allowed to keep in view, was bound to move their feelings, or at least surround them with “ an atmosphere freighted with sympathy.” *(Houghkirk*v. *President, etc., D. & H. C.*Co., 92 N. Y. 219, 225. See, also, *Schwanzer*v. *Brooklyn Heights R. R. Co.,*18 App. Div 205; *Harrison*v. *N. Y. C. & H. R. R. R. Co.,*195 N. Y. 86.)

Considering this influence, which is reflected in the verdict, the recovery of $16,000 should be reduced. The earnings of $4.50 a day are not shown to be continuous. Other testimony as to heading foremen show occasional layoffs and other interruptions in their employment. A fair and just compensation *47should not exceed $12,000. *(Hoffman*v. *N. Y. C. & H. R. R. R. Co.,*42 Misc. Rep. 579; *Stevens*v. *Union Railway Co.,*75 App. Div. 602; *Conrad*v. *N. Y. C. & H. R. R. R. Co.,*137 id. 372.)

The judgment and order should be reversed and a new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery to $12,000, with interest from March 6, 1913, in which event the judgment as so modified and the order are affirmed, without costs.

Jenks, Pt J., Carr, Rich, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery to $12,000, with interest from March 6, 1913, in which event the judgment as so modified and the order are unanimously affirmed, without costs.