#### Catherine Wynn, Resp’t, *v.*The Central Park, North & East River R. R. Co., App’lt.

*(New York Common Pleas, General Term,*

*Filed April 20, 1891.)*

1. Negligence—Motion to strike out evidence.

In an action for injuries to a married woman sustained in a collision between street cars, a motion to strike out evidence of a miscarriage occurring subsequent thereto, on the ground that it was special damage not pleaded, comes too late after plaintiff has testified fully in relation thereto without objection and has been cross-examined about it and her physician has answered questions concerning it, and it is not error to deny such motion.

*1822. Same—Evidence.

A witness for plaintiff testified that she sat next to plaintiff and was knocked off the seat by the collision and somebody fell on her. *Held,*that it was not error to exclude a question on cross-examination whether she was not bruised on the side next to plaintiff, in the absence of proof that the plaintiff was the person who fell on her.

3. Same.

Plaintiff’s evidence showed that she sustained a rupture of the umbilicus. *Held,*that it was not error to refuse to permit an expert called by defendant to be asked whether hernia of the umbilicus is as serious as hernia of the scrotum, the evidence having been confined all through the case to umbilical rupture and no other.

4. Same—Damages.

Plaintiff was forty years old and had five or six children and was the wife of a man who keeps a liquor store. She sustained a rupture of the umbilicus, said to be permanent, and suffered *&*miscarriage. *Held,*that a verdict of $5,000 was not excessive.

5. Same—Street railroads.

There is no difference in the duty owing by the carrier of passengers by horse railroads and by steam. Passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons.

6. Same.

The accident was caused by the breaking of a link in the brake chain. Defendant’s inspector testified that he inspected it that morning, but his evidence as to the manner of inspection was contradictory. *Held,*that it was for the jury to say what inspection he did make and whether it was a sufficient compliance with the requirement of vigilance which the law imposes on the company.

T Same—Charge.

It is not error to refuse to charge in such a case that it the appliances were the best that could be provided and were the same as those used on •other horse cars and that an accident of this kind never happened before, negligence could not be imputed to defendant by reason of the accident; as it excluded the duty of inspection.

Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial on the judge’s minutes.

*Vanderpoel, Cuming & Goodwin (Henry*Thompson, of counsel), for app’lt; *Charles H. Woodbury,*for resp’t.

Daly, Ch. J.

This is an appeal from a judgment entered upon a verdict for $5,000 in favor of plaintiff, who claims to have been injured by the negligence of the defendant company while a passenger in one of its horse cars on Fifty-ninth street going east. The chain by which the brake was applied to the wheels of the car broke near Seventh avenue, and the car ran by its own weight on the down grade to Fifth avenue, where it came in collision with another car of the same line which was standing at that point. The force of the collision was very great, as the car on which plaintiff sat was crowded with passengers, some of them standing up. One of the horses was killed, the glass of the car was broken, the front dashboard was smashed, passengers were thrown down, and the plaintiff was so injured as to be insensible and to be unable to be moved for several days, was confined to her bed, sustained a rupture of the umbilicus and had a miscarriage.

*183It is claimed that the trial court erred in allowing evidence of the miscarriage, that being special damage and not pleaded; but it appears that this injury was fully proved by the plaintiff without objection, and she had been cross-examined about it, and it was only after her physician had answered some questions concerning "it, one put by defendant’s counse' that the formal objection was taken, and a motion was made to rule out the testimony and to take away from the jury all consideration of the other testimony on the same subject. The motion was too late, and it was not error to deny it. *In re*Morgan, 104 N. Y., 74; 5 N. Y. State Rep., 541; *Pontius*v. *The*People, 82 N. Y., 339. The defendant did not claim to be surprised and had all the advantage of the testimony of the plaintiff’s family physician as to the fact of a previous miscarriage, which the plaintiff had denied. In fact, it appeared from the first question on her cross-examination that defendant was apprised of the claim of miscarriage and was prepared for it.

On the question of damages, it is also claimed there was error in the exclusion of testimony on the cross-examination of the witness Bridget McEwen. Mrs. McEwen was a passenger in the car, sitting next to the plaintiff, and was knocked off the seat by the collision, and somebody fell on her. She could not say who. She was asked whether she was not bruised on the side next to the plaintiff, and exception is taken to the refusal to allow that question. The appellant claims that it is the natural inference that the injuries the two women received were but skin contusions caused by striking one against the other, and that" that evidence was pertinent as to the nature and extent of the plaintiff’s injuries. The evidence did not justify any such inference. Mrs. Mc-Ewen's injuries were received from some person falling upon her, but after she was knocked off the seat, and there is no proof that the plaintiff was that person.

Error is also alleged in the refusal of the court to permit the defendant’s witness, Dr. Grinnell, to be asked whether hernia of the umbilicus is as serious as hernia of the scrotum. The evidence as to hernia had been confined all through the case to umbilical rupture, and no other. The excuse offered by the defendant for asking this question is, that the plaintiff’s physician, Dr. Thomas, “ craftily and purposely blends and confuses these radically different disorders in his testimony," where he says “in all business affairs where a person has hernia it is a disability ; jurors are frequently excused from the suffering from one; no fireman, no policeman are received in the service, military. It is a disability, and so recognized.” The question put to Dr. Grinnell, defendant claims, would secure the jury from the error of supposing that any kind of hernia produces disability. It appears, however, that this evidence was not given until after the questions put to Dr. Grinnell had been excluded, so that they could not at that stage of the case have been intended to secure the jury from any confusion arising out of Dr. Thomas’ craftiness. Besides, there is . no reason to suppose from Dr. Thomas’ testimony that he was then speaking of rupture of the scrotum.

*184Finally, on the question of damages, the verdict is claimed to be grossly excessive “ considering the plaintiff’s age and condition of life, the nature of the shock, the slight speed of the car, the plaintiff’s sitting position at the moment of the impact.” The plaintiff is about forty years of age and has had five or six children. She is the wife of a man who keeps a liquor store at Eighty-fourth street and Park avenue. Her injury is said to be permanent. Dr. Thomas says that the rupture has enlarged in spite of all efforts to prevent it; that it is likely to continue as long as she lives. She has worn a truss ever since the hernia appeared. This permanent injury, with the miscarriage and the immediate effects of the accident, justify substantial damages, and if the jury say that $5,000 was not too much, we cannot say that they erred.

The principal question in the case is as to the alleged negligence of the defendant. The appellant claims that the mere fact that the brake became unmanageable is not enough to convict the defendant of negligence; that it was shown to be in good order up to the time it gave way, and had been daily inspected; also, that there was nothing in the management of the car by the driver which would sustain a finding of negligence, and that it was error to submit the question of negligence in the appliances used to operate the brake, and in the management of the car by the driver, to the jury.

There is no difference in the duty owing by the carriers of passengers by horse railroads and by steam. Passenger carriers bind themselves to carry safely those whom they take into their coaches, as far as human care and foresight will go, that is, to the utmost care and diligence of very cautious persons. *Maverick*v. *Eighth Ave. R. R. Co.,*36 N. Y., 378, citing *Bowen*v. *The N. Y. C. R. R. Co.,*18 id., 408, and *Deyo*v. *The N. Y. C. R. R. Co.,*34 id., 9.

" The carrier is bound to provide a safe and secure carriage for the transportation of passengers, and nothing can exempt him from this responsibility but the existence of some latent defect which no reasonable degree of human skill and foresight could guard against, and this obligation belongs to every species of appliance belonging to the carrier and used by him in the business in which he is engaged, and consequently whenever it appears that the accident occurred through some defect in the vehicle, or other apparatus used by the carrier, a strong presumption of negligence arises, founded upon the improbability of the existence of any defect which extreme vigilance, aided by science and skill, could not have detected. Where an injury is received from a derangement of anything employed by the carrier, the presumption necessarily arises that there exists somewhere an imperfection in the machinery employed, or negligence in its operation. It is for the defendant, then, to show the facts relieving him from responsibility in the particular case; it is not for the plaintiff to ascertain the particular defect” *Curtis*v. *R. & R. R. Co.,*18 N. Y, 534.

“ Where a situation is shown which could not have been pro*185duced except by the operation of abnormal causes, the *onus*then rests upon the defendant to prove that the injury was caused without his fault” *Seybolt*v. *The N. Y., L. E. & W. R. R. Co.,*95 N. Y., 562. The question for the jury is whether the presumption of negligence has been sufficiently negatived by the evidence introduced by the defendant. The burden of explaining the cause of the accident rests upon the defendant Id.

“ Where the presumption of negligence has been established against a carrier of passengers in an action for damages resulting from an accident, it can only be rebutted by proving that the accident resulted from circumstances against which human prudence and foresight could not guard, that it could not be averted by such precautions as would be dictated by the utmost care and prudence of a very cautious person before the accident, and without knowledge that it was about to occur.” *Bowen*v, *N. Y. C. R. R. Co.,*18 N. Y., 408.

In this case the brake failed to work because one of the links of the chain operating it broke on the trip on which the accident occurred. The inspector of the running gear of the defendant’s road testified that he had examined the chain that morning and found it all right to the eye and touch, but in detailing the matter of his inspection he told a different story at different times. Upon this trial he said that he got underneath the car and looked at every link. Upon a former trial he testified that he did not examine every link, and only tried the brake in the ordinary manner to see if it worked, not to see if everything was perfect or to ascertain the strength of the chain, but only to see if it worked. It was for the jury to say what inspection he did make, and whether what he did was a sufficient compliance with the requirement of vigilance which the law imposes upon the company. The broken link was not produced to show that it had a latent defect. No cause was shown for the breaking of the link, and the burden was on the defendant to prove that the defect in the chain, if any existed, could not be discovered by the use of the care and skill which the law required to be exercised.

There is an exception by the defendant to the submission to the jury of the question whether the device for applying the brake was that best adapted for the purpose, it being claimed that there was no evidence in the case that any other device was known or used. It appears, however, that after the court had submitted that question to the jury, the defendant requested certain specific instructions to be given to them on the point, which were given. Having asked for the submission of certain propositions upon that branch of the case to the jury, and its request having been granted, its subsequent exception to the submission of the question is not available. The court charged at its request, “ where an appliance, machine or structure not obviously dangerous has been in daily use and has uniformly proved adequate, safe and convenient, its use may be continued without the imputation of culpable imprudence or carelessnessalso, “ that experience in in horse railroad *186proved the safety of the device for applying brakes and the efficiency of the method of constructing and operating them, the defendant was justified in relying upon the safety of the device.”

These instructions gave the defendant all it contended for. It requested the court to charge, in addition, that “ if the jury believe that the brake appliances used on this car were the best the road could provide for the purpose, that they were the same appliances used on other horse car roads, and that an accident of this kind had never happened before, they cannot impute negligence to the defendant by reason of the use of this appliance," but before the court could pass upon this request the defendant’s counsel changed the latter part of it, and asked it to be charged in these words: *“*They cannot impute negligence to the defendant by reason of this accident,” which the court refused to charge because it excluded the duty of inspection. This was proper, and the exception to such refusal is not good.

As to the submission of the question of the alleged negligence of the driver of the car, the evidence of the defendant’s inspector was that a proper application of the brake would not break the chain; also, that if the brake was properly applied and the chain gave way it was defective. It was for the jury to say whether the brake was properly handled by the driver. It appears that he was going down the grade from Seventh to Sixth avenue when a beer wagon crossed in front of him on the track, compelling him to put on the brake; that the wagon then got out of his way and he let the brake go, but the wagon pulled in before him again and he was compelled again to apply the brake; that the wagon again got out of his way but immediately pulled in before him a third time, and for a third time he had to apply the brake; it was then that the chain broke. He swears he is not conscious of using any extraordinary force. The jury might have regarded the natural effect upon him of this perverse and irritating conduct of the driver of the beer wagon, in estimating both the amount of vigor he displayed in applying the brake and the probability of his recollecting clearly now much force he employed.

The case as left by the defendant showed that if the brake were properly applied the chain would hold; that if it did not hold when properly applied it was defective; but it was not shown what caused the chain to break or that the breaking could not have been prevented. The presumption of negligence arose from the nature of the accident. That presumption remained in the case, and it was for the jury to consider the testimony given by the defendant and to say whether the presumption of negligence was rebutted. There was ground for their finding that it was not, and we ought not to disturb the verdict

The judgment and order -appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.