#### Ryan v. Porter Manuf’g Co., Limited.

*(Supreme Court, General Term, Fourth Department.*

July 1, 1890.)

1. Evidence—Declarations as to Suffering.

In an action for personal injuries it was error to admit evidence of declarations made by plaintiff to Ms mother, more than a month after the accident, as to the pain he was then suffering.

3. Injury to Servant—Assumption of Eisk.

Where the danger is obvious, and the servant is capable of noting; it, and has sufficient opportunity to do so, he cannot recover when he voluntarily continues in the employment.

Appeal from county court, Onondaga county.

A verdict was rendered for the plaintiff for $750 damages. An order was made in that court denying a motion made upon the judge’s minutes for a new trial. Appeal from the judgment and order. The action was brought to recover damages for the alleged negligence of defendant in so constructing the floor in its boiler shop in Syracuse that, upon November 21, 1881, the leg of the table crushed through the floor, thereby causing some boiler sheets to slide off, and strike the plaintiff, who was then one of defendant’s employes,' breaking his leg, and causing other injuries to him. The defendant denied •any negligence, and alleged that plaintiff was fully acquainted with the construction of the floor, and assumed all the risks incident thereto, and to the' work at which he was engaged at the time of the accident; and also alleged that the plaintiff and his co-employes directly contributed to the accident by their negligence in improperly loading the table. The building where the accident occurred had been built about a year preceding the occurrence, and the ground inclosed by the building was uneven, and a contract had been made by the defendant with one Martin to fill in and level up the ground, and also a subsequent contract to build a floor. Martin was a contractor and builder, capable, and was intrusted with entire charge of the work, and he proceeded to level up the place with dirt and ashes, and to lay on top of them a hemlock plank two inches thick upon stringers 4x4 and 4 feet apart, and ashes being back of and around the stringers. In March, 1881, the floor and foundation, where the injuries were received, were placed. The latter flooring and foundation were built under a contract made by the defendant with one Fairchild, who had had experience in such matters, and whose competency was not questioned upon the trial. The form and method of construction, *775including the foundation underneath, and the selection of workmen and material, were left to his judgment and skill. Plaintiff had been in the employ of the defendant, at the time of the injury, for about eight months, and had been about the floor with opportunity to see how the floor and foundation were constructed. When the injury occurred he and five co-employes were bringing sheets of boiler iron, weighing about 290 pounds per sheet, from the yard into the shop, and piling them on a “laying-out table.” This table had a top about 7x3Jleet, and was supported by four legs, each about 4x6 inches at the base, where they rested upon the floor in plain sight of the plaintiff and his co-employes. The sheets were not piled evenly upon the table, and their attention was called to it, but they continued to pile the iron as before, although some evidence indicates that the floor had begun to sag, and that fact was noticed, and although there were other tables on which it might have been piled. After an accumulation of about 85 sheets, one leg of the table crushed through the plank, and the iron slid off, and the plaintiff received the injuries complained of. Upon the leading questions of fact involved in the case the evidence is quite extensive, and considerably conflicting. A verdict had been obtained in a former trial in favor of the plaintiff, and the judgment entered thereon was brought into this court, and reversed on account of erroneous ¡rulings made at the trial.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

*Frank H. Kiscoek,*for appellant. *Thomas*Kogan, for respondent.

Hardin, P. J.

1. It appears that after the plaintiff received the injuries he was taken home and placed in bed. His mother, who was called as a witness, testified, viz.: “His suffering was bad; very hard. I guess I know. He complained of great suffering. I was up day and night with him. ” Thereupon the following question was propounded to her: “ *Question.*You may state what complaints of bodily pain he made during the time he was confined in bed, if any.” This question was objected to as immaterial and improper and inadmissible. Thereupon the court remarked: “The question is too broad.” Then the plaintiff propounded the following question: *“Q.*Well, commence at the early part, just as he was placed in bed and being taken home, and state what complaints of bodily pain he made, or what you observed as to his condition of suffering. ” Similar objections to those already stated were made to this question, and they were overruled, and the defendant took an exception. The witness answered: *“Answer.*Well, he complained of his back in the first place, and pain in his leg. ” Thereupon the defendant moved to strike the evidence out. The court denied the motion, and the defendant took an exception; and thereupon the plaintiff propounded the following question: *“Q.*What complaints did he make? Tell the jury, so that they can hear you, how bad he suffered. *A.*Well, he complained many times that they hurt him so that he didn’t know, that he could live through.” The defendant moved to “strike out the evidence upon same grounds as stated in last objection.” The motion was denied, and the defendant excepted. The witness stated that he was “taken up and helped on the lounge Christmas morning.” Thereupon the following question was propounded to her: “How, did he complain of suffering during that time?” The answer was: “Yes, sir. Hot much. Hot as much as he had nine or ten .days the worst of his suffering. The first nine or ten days were the worst of his suffering.” In *Olp*v. *Gardner,*48 Hun, 169, in an action which was brought to recover damages for injuries sustained by the plaintiff, “her husband was allowed, against the objection and exception of the defendant’s counsel, to testify as to complaints made by his wife, after the day of the accident, of being dizzy-headed, of a great roaring in her head, and of pain in the back of her eyes. Held, that the evidence should not have been received. * * * The evidence of statements made long after the injury as to the effect of the injury, or as to the sufferings endured *776therefrom, is not competent.” In delivering the opinion, the court refers to *Roche*v. *Railroad Co.,*105 N. Y. 294, 11 *N.*E. Rep. 630, in which case the court of appeals held as follows: “In an action to recover damages for alleged negligence causing a personal injury, declarations of the party injured, made some time after the injury, simply to the effect that he is suffering pain, when not made to a physician for the purpose of professional attendance, are not competent as evidence.” We think the rulings made by. the trial judge, tested by the cases to which we have just referred, were erroneous. Respondent calls our attention to *Hagenlocher*v. *Railroad Co.,*99 N. Y. 136, 1 N. E. Rep. 536. As we understand that case it is only an authority for holding that it is “competent for plaintiff to prove exclamations indicative of pain made by such person at the time of the injury.” We think it does not justify all the evidence which was received in the case before us. Our attention is invited to *Lewke*v. *Railroad Co.,*46 Hun, 286, where a witness was permitted to testify that he “saw the plaintiff picked up from the spot where he received the injury.” The plaintiff immediately went to the store of the witness, and the witness “noticed the condition of his clothes, and that his left leg seemed to be swelling. It was at this time that he complained of pain in his limb.” And it was stated by the court in this case, viz.: “And it would seem that the complaint in the present case, made so soon after the accident, and while plaintiff’s injured leg was visibly swelling, was so closely allied to mere exclamation as to justify the reception of the evidence.” If we were to give full effect to all that was decided in this case, it would not justify the reception of all the evidence received in the case before us. The opinion contains no reference to *Roche*v. *Railroad Co., supra.*In the latter case, Peckham, J., said: “Her declaration that ‘it pained her very badly’ is mere hearsay, and should not have been permitted. ” Applying that rule to the case before us, we think some of the evidence given by the plaintiff’s mother was inadmissible, and erroneously receivéd.

2. The case states, viz.: “During the summing up to the jury, counsel for the plaintiff stated to the jury that he would ‘read to them the law applicable to this case as it had been laid down by the court of appeals,’ and commenced to read to them authorities.” Thereupon the counsel for the defendant objected. The court permitted the authorities to be read, and the defendant took an exception thereto. While we do not propose to examine the question involved in the exception, and place our decision upon the ruling made in respect to the right of counsel to read authorities to the jury, we may observe in passing that it was the duty of the trial court to instruct the jury as to the law ofjthe case, and we may call attention to the appropriate remarks of Brady, J., in *Lesser*v. *Perkins,*39 Hun, 343, in dealing with a similar question. He says: “The practice of reading to the jury, as done here, has been condemned by a number of adjudged cases. *People*v. *Anderson,*44 Cal. 70; *Tuller v. Talbot,*23 Ill. 357; *Sprague*v. *Craig,*51 Ill. 288; *Reich*v. *Mayor, etc.,*17 Wkly. Dig. 141; *Allaire*v. *Allaire,*39 N. J. Law, 113; *Koelges*v. *Insurance Co.,*57 N. Y. 638. Perhaps in this state it may be done where the matter read is the law of the case, and can by no possibility prejudice the adverse party, *(Koelges*v. *Insurance Co., supra;)*but, nevertheless, it must be said that it is a custom more honored in the breach than in the observance, and, further, should not be allowed as long as the jury are required to accept for their guidance the legal rules pronounced by the court. If the counsel desires to call the attention of the court to rule, doctrine, or maxim, and to illustrate by treatise or adjudication, it is proper to do so; but the jury, if addressed on the subject by counsel, may confuse the construction and the reading, and thus obstruct, if they do not defy, the administration of justice.” The observations made by the learned judge meet with our approval, and accord with the general practice which has come under our observation.

3. Defendant requested the court to charge the jury, viz.: “That if the *777jury find that it was negligent for Dee, plaintiff’s foreman and co-employe, to continue piling up iron on the table in question after he saw the floor sag thereunder, and that such negligence caused the accident, then plaintiff cannot recover. ” The court refused to give the charge as requested, but did charge the same, adding thereto the words: “Provided defendant had performed its duty in the construction of the groundwork and floor in question.” The defendant also asked the court to charge “that, if the jury find that plaintiff, prior to the accident, knew of and appreciated the manner in which defendant’s floor was constructed, then he assumed the risk of the defect, if any, and its construction.” This request was refused, and the further request was made “that, if the plaintiff was capable, and had the opportunity, by knowing thereof, prior to the accident, of judging of the propriety of the form of construction of defendant’s floor, then, having continued in its employ, he cannot recover.” This request was refused. In *Shaw*v. *Sheldon,*103 N. Y. 668, 9 N. E. Rep. 183, it was held by the court of appeals, viz.: “The majority of the court are of opinion that this judgment should be reversed, for the reason that the facts established beyond dispute that the injured employe entered upon the service and remained in it with a full knowledge and appreciation of the risk and danger resulting from leaving the coupling uncovered. The fact was entirely obvious, the resultant peril plain at a glance, and the injured servant a skilled workman, a foreman of the rollers, accustomed *to the*machinery and the service, and having the capacity and ability to. fully appreciate the consequences of leaving the couplings uncovered. Within the rule applicable to such cases, the plaintiff’s intestate took upon himself the risk of injury from the observed and obvious omission.” We think the trial judge did not keep within the principle laid down in the case from which we have just quoted. Judgment and order reversed on the exceptions, and a new trial ordered in the county court of Onondaga county, with costs to abide the event. All concur.