#### David Morsemann, Respondent, *against*The Manhattan Railway Company, Appellant.

(Decided June 2d, 1890.)

. The fall from an elevated railway of a crow-bar, in use by an employe making repairs to the track, whereby a person in the street below was injured, raises a presumption of negligence, which is not overcome by proof that the crow-bar was dropped through the efforts of the employe to save himself from falling.

At the trial of an action against a railway company for injuries alleged to have been caused by negligence in repairing its tracks, the judge, in charging the jury, said: “You must say whether the railroad company has used ordinary and reasonable care in performing this work upon its tracks.

. . . Has it neglected the precautions which reasonable and prudent people would have taken to prevent an accident similar to the one upon which you have to pass ?” *Held,*that this was not objectionable as inviting the jury to make affirmative suggestions as to possible safeguards.

In an action for personal injuries, the amount of the bills paid by plaintiff for services of physicians oh account of his injuries is admissible in evi- • dence without proof of the value of the services.

Appeal from a judgment of this court entered on the verdict of a jury and from an order denying a motion for a new-trial.

The facts are stated in the opinion.

*Howard Townsend*and *Alexander S.*Lyman, for appellant.'

*William 0.*Campbell, for respondent.

Larremore, Ch. J.

The plaintiff, while driving under defendant’s elevated railway structure in Third Avenue, on the 14th day of November, 1888, was injured by a crow-bar falling from such structure, which was in use by an employe making repairs to the track. The facts of the injury and its cause are undisputed, and no contributory negligence is al*250leged. Tlie trial judge correctly held that a *prima facie*case of negligence was made out (see *Maher*v. *Manhattan R.*Co., 53 Hun 506), and properly ruled that the fact that the crow-bar was dropped through the employe’s effort to save himself from falling did not overcome the presumption of negligence. This latter question is necessarily bound up in and a part of the general inquiry whether suitable precautions were taken for the safe conduct of the work in its entirety. The learned counsel for appellant contend that the judge erred in his charge in the too great latitude it gave the jury to determine whether proper precautions had been taken. They argue that the jury were invited to make affirmative suggestions as to possible safeguards which might have been supplied. . But while the instructions were general in their terms, they were sufficiently limited by the context. The judge said : “ Now this ordinary care with which the railroad is chargeable requires them to be careful, not only in the running of their trains, but also in employing competent servants to do work upon its railroad, and to use reasonable and ordinary care in selecting such appliances as are in practical use and of easy application. . . . You must say whether the railroad company has used ordinary and reasonable care in performing this work upon their tracks. . . . Has it neglected the precautions which reasonable and prudent people would have taken to prevent an accident similar to the one upon which you have to pass ? ”

If the charge was at all amenable to the criticism suggested by *Cummings*v. *Brooklyn City R. R. Co.*(104 N. Y. 669), all error was cured in the same manner that it was in that case. It appeared from the cross-examination of one of defendant’s witnesses that, if the workmen had adopted the very simple expedient of laying boards, which were handy for their use, between the tracks, while this work was going on, the accident would have been prevented. As to this and other suggested precautions, it was not the province of the judge to ask the jury to say whether this or that omission in itself constituted negligence, but to instruct them, as he did, to deter-

*251mine from all the evidence, and under the circumstances disclosed, whether defendant had been negligent *(Buck*v. *Manhattan R. Co.,*6 N. Y. Supp. 524).

Nor do we think it was error to admit evidence of the amount of the physicians’ bills which plaintiff had paid without proof of the value of the services. This is part of the expense to which he has been put by reason of the accident. In *Gumb*v. *Twenty-Third Street R. Co.*(114 N. Y. 411), the plaintiff gave evidence of a physician’s charge, but without giving evidence of payment or of value, and it was held error. The present case is different because plaintiff has paid the doctors’ bills (fols. 10T, 112). If a bill has not been paid, perhaps it would be well to insist on some proof of value to repel the suspicion of a collusive charge of a speculative fee. When the bill has actually been paid, there is little ground for such suspicion, and plaintiff would always be open to cross-examination as to a fictitious payment.

No error appearing, the judgment should be affirméd, with costs.

Bookstaver, J., concurred.

Judgment affirmed, with costs.