Kay v. Metropolitan Street Railway Co.

This action was brought to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant in the management and operation of its cars. On the 28th of January, 1895, the plaintiff was a passenger on one of the defendant’s cars, ■operated on its road on Amsterdam avenue, in the city of New York. At One Hundred and Sixteenth street a steep hill commences, extending to One Hundred and Twenty-sixth street, the grade of which is very heavy, the fall from One Hundred and Seventeenth street being 118 feetj and on the steepest part, between ■One Hundred and Nineteenth and One Hundred and Twenty-fourth streets, there is a fall of sixty-five and one-half feet in four blocks. The plaintiff boarded the car at about eleven o’clock in the evening between Sixty-second and Sixty-third streets. The night was snowy and cold. For some cause the car ran down this hill with great rapidity and collided with another car at the foot *188inflicting injuries upon the plaintiff for which she seeks in this action a recovery of damages.

No serious contention is made but that the evidence upon the part of the plaintiff made out a prima facie case of negligence against the. defendant which it was called upon to answer. It is the claim of the defendant, however, that after it had given, its proof explaining the cause of the accident and its management of the car, it then clearly appeared that no basis was left upon which to predicate negligence, and the court should have directed a verdict in' its favor. We are unable to agree with this contention. It would serve no useful purpose to discuss in detail the evidence which authorized the court to submit and the jury to find the negligence of the defendant. There was testimony tending to establish that the driver made little or no effort to stop the car when descending the hill. The whole surrounding circumstances, the character of the rails, the condition of the weather arid the danger in operating the car down the hill were all given, and from it we think that the jury were authorized to find a lack of care in the management of the car by the servants of the defendant, and might also have found that it was negligence to attempt the operation of the car down the hill until the rails were so protected or sanded as to prevent the-sliding of the car. We think in this respect, without furthér discussion, that the evidence was sufficient to sustain the verdict of the jury.

The only other question in the case requiring .attention relates to the testimony of Mrs. Schenck, given in rebuttal of the testimony of the defendant. It appears that the parties had entered into a stipulation. that testimony given upon a former trial might be read from the stenographer’s minutes. The minutes had been lost, but both parties upon this trial had read from the record upon the former appeal by virtue of the provisions of this stipulation. The parties themselves, .therefore, evidently treated the stipulation as applying to the record as well as to the stenographer’s minutes, and, if Mrs. Schenck had not been called as a witness upon the present trial, it is clear that no error would have been committed in reading this testimony in view of- the practical interpretation given by the parties to the stipulation. It is urged, however, that the stipulation did not apply to a witness who was present or whose presence could be obtained. At the time the testimony was read Mrs. Schenck was *189not present, although she had been, and was sworn as a witness upon the trial. The evidence sought to be read was in rebuttal and at the close of the trial. When the reading begun the defendant objected upon the ground that it was not rebuttal and that Mrs. Schenclc had fully testified upon the subject. The court ruled that the plaintiff might read such testimony as was strictly in rebuttal, to which the defendant excepted. It is not urged upon this appeal that such testimony was not in rebuttal of the evidence given by the plaintiff. The claim here is that there was no authority to read her testimony at all, either contained in the stipulation or otherwise. It is a complete answer, however, to the claim to say that no such objection was taken at the trial. Such point was not even suggested, nor was the party or the court apprised of any objection based upon such ground. The testimony was inherently admissible, and if the objection now urged .had been taken the plaintiff might have waived the question entirely, or procured the presence of Mrs. Schenck. It- is well settled that testimony which is not essentially incompetent- and to which the grounds of- objection might have been obviated, if they had been specifically stated, is properly received and a party cannot question such ruling for the first time upon appeal. Under such circumstances no error is committed in receiving the testimony. (People v. Murphy, 135 N. Y. 450.) The rule finds precise application to the facts of this case, and is controlling of the subject.

It follows that the judgment and order should be affirmed, with costs.

Yah Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs.