#### Frederick Gall, Pl’ff and Resp’t, *v.*The Manhattan Railway Co., Def’t and App’lt.

*(New York Superior Court,*

*General Term,*

*Filed May 6, 1889.)*

1. Negligence—When mat be inferred from nature of accident.

Where the plaintiff was injured while walking on the sidewalks of the street immediately under the defendant’s elevated railroad, by being struck with a heavy piece of metal, which fell from one of defendant’s cars passing above, it was *Held,*that from the nature of the accident itself, negligence on the part of the defendant might be inferred,

2 Same—Evidence of medical experts—Permanency of injury—Admissibility of.

Testimony of medical experts was received as to the nature and extent of the injuries received by the plaintiff, and as to the certainty that the injuries would be permanent; but as such testimony was only the opinions, of the respective witnesses, which it was the province of the jury to consider, *Held,*not to be error in the trial court in admitting it.

3. Same—Rule as to railroad company’s duty as to equipment and appliances—Applies to passengers only and not to persons passing along'streets.

The rule that a railroad company is bound to add to the construction and equipment of their road and cars, the best and most select safeguards which human skill and ingenuity from time to time have invented, applies only as to passengers. They are not bound, as against persons who were not passengers, to take such extraordinary precautions. As to _ all such other persons, who have the right to use the streets in common with them, ■■ if they adopt such safeguards, as under all'the circumstances, and'ih'vie'w *25of the peculiar structure of the road and the dangers to be apprehended, as are reasonably adequate, they have discharged their duty in this respect.

4. Same— Manhattan Elevated Railroad—Not liable for negligence BY REASON OF NOT HAVING SHIELD OR SCREEN UNDER STRUCTURE.

The elevated railroad companies of the city of New York are not obliged to build a shield or screen under their superstructures, and they are not tobe held liable for negligence solely by reason of the fact that at the time of the accident they had no shield or screen under their structure.

5. Same—Refusal to charge—When not error.

Where the trial judge charged in general terms, but with sufficient clearness, upon a point, he is not bound afterwards to charge specially upon the same point, though requested, and his refusal is not error.

6. Same—Charge to jury—When verdict will not be disturbed.

The charge to the jury must be considered as a whole, and not piecemeal, in separate parts, and, if taken as a whole, it conveys to the jury the correct rule of law on the given question, the verdict will not be disturbed, even though detached sentences may be erroneous.

*Burnham & Watson,*for resp’t; *Davies & Bapallo,*for app’lt.

O’Gorman, J.

The plaintiff, while walking on the sidewalk of the Bowery, immediately under the track of the defendant’s elevated railroad, was struck by a heavy piece of metal which fell from one of the defendant’s cars passing-above. This piece of metal was part of the cylinder of the defendant’s 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 defendant might be inferred, and on this ground, chiefly, denied the defendant’s 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 *Consulich*v. *Standard Oil Co.,*55 Supr. Ct., 384-394; *Gerlach*v. *Edelmeyer,*47 id., 292; *Caldwell*v. *N. J. Steamboat Co.,*id., 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.

*26There 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 defendant’s 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 superstructures, 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 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 *27whole, and, if taken as a whole, it conveys to the jury the correct rule of law on a given question, the judgment will not be reversed, even although detached sentences may be erroneous. *Caldwell*v. *N. J. Steamboat Co. (supra),*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 defense, 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., concurs.