(11 App. Div. 86.)

#### WERNER v. BROOKLYN EL. R. CO.

(Supreme Court, Appellate Division, Second Department.

December 30, 1896.)

Witness—Cross-Examination—-Expert.

Where an expert witness of defendant elevated railway company testifies as to the proper construction of engines used for elevated railroads, he may, on cross-examination, be asked whether sparks of a certain size could be emitted by a properly constructed and carefully operated engine, to show the mechanical knowledge and confidence of the witness in his opinions.

Appeal from trial term, Kings county.

Action by Andreas Werner, as administrator of Franciska Werner, deceased, against the Brooklyn Elevated Railroad Company. From a judgment for plaintiff, rendered on a verdict, and from an order denying a new trial, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and CULLEN, BARTLETT, HATCH, and BRADLEY, JJ.

*847R. Percy Chittenden, for appellant.

William J. Carr, for respondent.

WILLARD BARTLETT, J.

This action was brought by the father and administrator of Franciska Werner, deceased, to recover $5,000 damages alleged to have been sustained by him as her only next of kin, by reason of the negligence of the defendant in causing her death on the 10th day of June, 1894. The complaint alleged, and the evidence amply justified the jury in finding, that while the plaintiff’s intestate was lawfully walking on Crescent street, a public highway in the city of Brooklyn, and while passing under the defendant’s elevated railway structure, a quantity of live coals dropped therefrom upon the girl’s clothing, set fire to the same, and so burned and shocked her that she died on the following day. It was further alleged that said live coals fell from the locomotive then and there in the use of the defendant, which was defective in appliances to prevent the escape of fire, and was operated carelessly and negligently by the defendant, in such manner as to allow the escape therefrom of burning matter. This allegation also found abundant support in the proof. The plaintiff recovered a verdict of $3,750.

Only two points are presented for our consideration by the brief of the learned counsel for the appellant. George M. Morrison, the engine dispatcher for the Manhattan Elevated Railroad Company in New York City, was called as a witness for the defendant, and upon his cross-examination was asked: “Now, would you say that a locomotive on the elevated railroad structure, properly constructed, kept in good condition, and carefully used, could emit from the smokestack or ash-pan ashes or cinders of the size of an inch and a half?” An objection to this question was overruled, the defendant excepted, and the witness answered: “No; if such piece of fire, coal, ash, or cinder of the size of about one and one-half inches should be emitted, I should say it was carelessness.” In the first point on the appellant’s brief, it is argued that the trial court erred in overruling the objection to the question thus put to Mr. Morrison, and reference is made to the much-cited case of Van Wycklen v. City of Brooklyn, 118 N. Y. 424, 24 N. E. 179. We find nothing in that decision, however, which tends to show that it was error to allow the question now under consideration. Mr. Morrison had been called by the defendant to testify as an expert to the usual and proper construction of locomotive engines in general use on elevated railroads. He had described the damper, and had expressed the opinion that it was impossible for it to open, in consequence of vibration, so as to allow any ashes whatever to fall out. He had also expressed the further opinion that there were no better appliances in general use than those which he had described to the jury. After this, on cross-examination, it was entirely proper to test the mechanical knowledge of the witness, and the character and confidence of his opinions, by such a question as that which is now criticised in behalf of the appellant. The answer went further than the inquiry, and the defendant might have been entitled to have all that the witness said in addition to the simple negative stricken out upon motion; but no such application was made to the court.

*848The second point is that the verdict was excessive. As to this, it is only necessary to say that we do not think it is so large as to justify any interference by this court on that ground.

Judgment and order affirmed, with costs. All concur.