Burke v. Manhattan Railway Co.

A portion of the charge which was excepted to, and several requests of the plaintiff’s counsel that were charged, were erroneous (Steinweg v. The Erie Railway Co., 43 N. Y. 123; Smith v. New York & Harlem R. R., 19 N. Y. 127). But whatever these statements may have been, they were afterwards- corrected; or rather, any error in them was obviated by the judge finally charging as requested by the defendants’ counsel, “that if the defendants used the best devices known to avoid throwing sparks, ashes or cinders, and used them carefully and with prudence, then they were not responsible. That they were not bound to use any supposed improved device or one which theoretically might be supposed to be better than the one in use, but only such whose utility had been tried and approved in practical operation.” This was the defendants’ own view of the law. It was the correct one ; and being the last thing the judge said respecting the law, it superseded and controlled what had been said before. The error in the part of the charge which was objected to, was that it might mislead the jury, being too broad, general and vague. This, the counsel for the defendants sought to correct by asking for an instruction that fitted on to what had previously been said, qualifying and limiting it, so clearly and comprehensively that the jury could not have been-misled. I am not disposed, in this respect, to follow the case of Toledo & Wabash R. R. Co. v. Surman (67 Ill. 68), for I do not think that it was rightly determined. The judge, in his charge in that case, said that if the fire came from the defendants’ engine, it was evidence of negligence; hut, as *82he afterwards said, it was prima facie evidence only, which, in fact, the statute of Illinois made it. These two statements were not, in my judgment, as the court held, “ widely apart.” The source from which the fire came, was evidence, because the statute made it evidence prima facie ; and what was afterwards said was merely stating what species of evidence it was. If the judge had said it was conclusive evidence, there would have been ground for holding that the two were “ widely apart.” But even then, I do not think it would be a reason for granting a new trial; for the last statement would obviously be a correction of the first, which is especially so in the present case, where, after the charge of the court, the counsel for the defendants rises, and in the presence of the jury, asks for a charge that modifies and limits what was previously said, with which request the judge complies and so charges; and it does not make the matter different, that the defendants’ counsel asked to have an exception entered to what had been previously charged. Everything that the ingenuity of counsel can devise is resorted to, in the form of propositions and exceptions, that a new trial may be secured, if the verdict should be against them, and the facility with which new trials are granted by appellate courts upon fine drawn distinctions, that have never been considered by, nor had the slightest effect upon the minds of the jury, has become, in my judgment, a reproach to our system of jurisprudence (Munroe v. Potter, 22 How. Pr. 57).

The statement that the nature of the accident may itself afford prima facie evidence of negligence, and that, where there are circumstances indicating negligence, the burden of proving the absence of it is upon the defendant, are propositions abstractly correct, and the charge that if cinders or sparks escaped from the defendants’ locomotive, it was prima facie evidence of negligence, must be understood as referring to the escape of cinders and sparks as described by the plaintiff, at the time when the injury happened, which was that he was driving a Sixth Avenue car, and as he came near Eighth Street, a locomotive engine *83passed over his head, and as it passed, a shower of cinders came into his face, one of which stuck in his eye, so that it had to be extracted by a physician, producing a severe injury to the eye, and an illness, by which he lost 43 days’ Avork. This, coupled with the general evidence of the falling of sparks, as a matter of daily observation, such as that “ the cinders Avere always very bad,” they were “ falling always from the locomotive,” that sparks of fire “ probably an inch, and may be three inches ”—would be emitted 5 that “ a great deal of fire ” was seen to drop doAvn and strike along the track and on the top of the cars; that it Avas a u common occurrence,” as one of the drivers said, for cinders to strike him in the face; that cinders dropped every three or four minutos; that “ some locomotives emitted more sparks than others, to a very noticeable degree; ” that one of the drivers, Dowdall, saw “ a big lump of burning coal fall and strike the horse ” that he was driving; with the testimony of Bassett, that the larger portion of the cinders exhibited in court, which had been collected in one spot upon a neAvspaper as they fell, could undoubtedly have been arrested by a sparks-arrester Avith which he was acquainted, was certainly enough to make out a prima facie ease of negligence, winch was substantially Avhat Avas charged in the several propositions excepted to.

This being the case, the motion for a nonsuit was properly denied. The evidence given by the defendants as to the care they exercised to preArent injuries from falling cinders, greatly preponderated over that of Bassett. It Avas, in the language of the master mechanic of the New York, New Haven and Harlem Railroad Company, “ that the means employed by the defendants Avere the nearest to perfection to any that had been employed.” But Bassett’s testimony Avas in conflict Avith that of all the witnesses called by the defendants, and the question was one for the jury.

The judgment should be affirmed.

Larremore, J., concurred.

The evidence for the plaintiff is very meagre, though I believe that he has a perfectly good cause of action. There is usually no difficulty in proving that the dropping of sparks from the locomotives of the Elevated Railway is caused by negligence, but yet in the majority of cases of this character, courts and jury are expected by the counsel for the plaintiff to presume, without proof, that negligence existed. The verdict in this case might well have been set aside as against the weight of evidence, but this court has not the power to weigh conflicting evidence in cases that are brought here upon appeal from the City Court. It ought to be understood that negligence is not established by mere proof that on a certain occasion sparks fell from a locomotive, and caused an injury. There must be proof that it was negligence to allow the sparks to fall (McCaig v. Erie Railway, 8 Hun 599; Ruppel v. Manhattan R. Co., ante p. 11; Lowery v. Manhattan R. Co., 12 Daly 431). Such proof is commonly made by evidence that engines properly constructed and in good order will not drop live coals, and yet that live coals were dropped from a locomotive, and that those coals occasioned the injury to the plaintiff (Fields v. New York Central &c. R. R. Co., 32 N. Y. 339; Lowery v. Manhattan R. Co., 12 Daly 431) ; or by evidence that live coals or sparks were emitted in such quantities that it is fair to conclude that the locomotive was either out of order, or carelessly managed (Bedell v. Long Island R. R. Co., 44 N. Y. 367; Ruppel v. Manhattan R. Co., ante p. 11).

The charge of the judge is open to criticism, and I have grave doubts as to the compatibility of one part of the charge with another. “ The giving of inconsistent instructions is error, for the reason that the jury will be as likely to follow the one as the other. Therefore an erroneous instruction is not cured by another instruction upon the same subject, which is correct, unless the former is specifically withdrawn ” (Chapman v. Erie Railway, 55 N. Y. 587; Thompson’s Monograph on Charging the Jury, § 69). The Chief Justice has expressed the opinion that its various *85parts may be harmonized so that the charge, taken as a whole, may not be an unfair or incorrect statement of the law. If this be so, the verdict may be sustained.

I concur in affirming the judgment, though I do so with great hesitation.

Judgment affirmed.