
    Emil O. Myer, Respondent, v. The Brooklyn City Railroad Co., Appellant.
    (City Court of Brooklyn
    General Term,
    October, 1894.)
    In an action against a street railroad brought by a passenger to recover damages sustained by a collision with one of its electric cars, the number of appliances for stopping the car is a proper subject for cross-examination of the motorman.
    An opinion of an expert as to whether there would have been time for the team to have passed in safety if the driver of the truck-had not whipped up his horses when the car was within fifty or seventy feet of it is inadmissible, as that is a question which the jury is competent to answer upon proof of the facts and circumstances.
    Where the trial has been a protracted one, and a large quantity of testimony has been taken, it is not error for the court to decline to charge as to what the evidence was on a particular point, and leave it to the recollection of the jury to determine on the evidence, especially when accompanied by an offer to have read to the jury any special parts of the evidence to which counsel might call attention.
    In an action for personal injuries the plaintiff testified that the accident caused an incised wound in his knee, which pierced through the knee-cap, and that the knee-cap was cracked. Three physicians testified that there was a wound over the knee-cap, but that the knee-cap was not fractured, Held, that it was not the duty of the court, under the circumstances, to direct the jury to disregard the plaintiff’s testimony as to the knee-cap being cracked; but that it was the duty of the jury to weigh all the evidence, and determine the fact therefrom.
    Error, if any, in the remarks of the court in its charge is cured by a direction to disregard entirely what has been said on that point.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict for $5,000, and from order denying motion for a new trial.
    
      Morris d¡ Whitehouse, for appellant.
    
      WilUam G. De Witt, for respondent.
   Osborne, J.

Plaintiff, while riding on the front platform of one of defendant’s electric cars going along Second avenue, was injured by reason of the car coming into collision with a four-horse beer truck seeking to cross Second avenue at Portyseeond street. Plaintiff obtained a verdict on the ground that his injuries were caused by the negligence of the defendant, and from the judgment entered thereon, and the order denying motion for a new trial, this appeal is taken.

The learned counsel for the appellant alleges for ground of reversal certain erroneous rulings of the trial judge, which we will proceed to examine.

The first ground of error alleged is the admission of the following question put during the cross-examination of the motorman of the car in question. The witness was being-cross-examined as to the number of the various appliances for stopping the car, and the following question was put by plaintiff’s counsel: Q. On the front platform of this car, do you mean to say that the instrument (one for sanding the track) wasn’t there % A. I didn’t use it if it was there; I can’t say it was or it wasn’t. Q. If it were there, then there would be six instruments for the motorman to handle in case of a rapid stopping of the car, wouldn’t there ? ”

This question was objected to, and an exception was taken to its admission, and the witness answered in the affirmative. We fail to see the slightest force in this exception, or how it could affect the result. The number of appliances for stopping the car was certainly a proper subject for cross-examination ; the witness, in his answer just previous to the question excepted to, said that he did not know if the sanding instrument was on his car; non constat but that counsel intended to prove by some other witness that it was there. How, then, could defendant’s case be affected by the witness’ admission that, if it was there, it would, with the other appliances he had already enumerated, make six in all to handle in order to stop the car qrdckly ? Even if it was erroneous to allow the question, it must appear that it would have a tendency to excite the passions, arouse the prejudice, awaken the sympathies, or warp or influence the jury, to make its admission constitute error. Anderson v. R., W. & O. R. R. Co., 54 N. Y. 334. That the admission of this question could not affect the result we are bound to conclude from the fact that the witness had already testified fully on this subject of the sanding machine, as appears by the following questions and answers : Q. Aren’t you as a motorman called on to sand the track ? A. Not always, no, sir; there is an instrument for sanding the track; it is on the car; it is on all the cars; it is underneath the seat at each end.” And again, and immediately preceding the question objected to, the witness testified as follows: “ Q. Now, we have got five instruments for the single motorman to use, all of which come in play when it is desirable to make a sudden stop of the car, haven’t we ? A. In case we have a train like I had that morning, yes, sir. Q. You started, I think, in your examination with only two of them ? A. To stop the car; but there is — Q. There seem to be five at least. Now, how about the sand ? That would make a sixth one, wouldn’t it? A. Yes, sir.”

That exception is untenable.

Further ground of error is alleged in the exclusion of a question put to the witness Inman, who was called on the part of the defendant. He had testified that he saw the accident; that, when he first saw the horses attached to the beer wagon, they were walking on an ordinary walk; that, when the leaders got near the crosswalk of Second avenue, the driver jerked his lines, applied his whip and started his horses ahead, and that, at that time, the train was between fifty and seventy feet from Forty-second street; he also testified that he “ had had a great deal of experience with the operation of driving trucks and horses.” Then the following question was put: Q. Now, if the driver of that beer wagon had not whipped up his horses, starting them ahead as he did, when that train was within fifty or seventy feet of it, would there have been plenty of time for that team to have passed in safety ? ” [Objected to by plaintiff’s counsel.]

The Court.— That is a conclusion.
Defendant’s Counsel.— I will take an exception.
“ The Court.—Yes—and I state to you that you can ask him what extra speed he put on, and how far he went, -but not his general conclusion. I will allow you to ask every element from which the witness can infer the conclusion that you ask.
“ Defendant’s Counsel.— I take an exception.”

Plainly, this was an attempt on the part of the learned counsel for the appellant to get the opinion of the witness as an expert truck driver before the jury.

We do not think that this was such a case or situation as to render expert testimony admissible; on the contrary, it was one where, with all the facts and circumstances before them, the jury were just as competent to answer the question for themselves as to rely on the opinion of the witness, be he ever so expert or experienced a driver. The court, as above shown, tendered counsel an opportunity to prove all the facts, all the elements from which a correct conclusion might, be drawn by the jury, and that was all that the defendant was entitled to. As was said in Ferguson v. Hubbell, 97 N. Y. 507, at page 513 : “ Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence it is not needed that the jurors should be able to see the facts as they appear to eye witnesses, or to be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them and comprehend them sufficiently for the ordinary administration of justice.” No one of the cases cited in appellant’s brief sustains the position taken by the learned counsel for the appellant, that the exclusion of the question was erroneous.

We might go further and sustain the exclusion of the question on the ground that the witness was not- fully qualified as an expert to answer it. A proper answer involved not alone experience in driving horses, but also some knowledge as to the speed of trolley cars and the ability of the witness to judge as to how rapidly the car was moving; on this latter point he was not shown to possess any expert knowledge.

It is further contended that the learned trial judge should have charged the following request:

“ Defendant’s Counsel.— I ask your honor to charge the jury that there can, in no view of the case, be any recovery in this case by the plaintiff for loss of wages or earnings subsequent to the first day of January, 1893.”
To this request the court replied: “ I think I will decline to charge that, and leave to the recollection of the jury the question of the evidence.” The defendant’s counsel took an exception, whereupon the court said : “ If you call my attention to special parts of the evidence, I will have it read to the j™y.”

We do not think that this exception was well taken, in view of the fact that the decision of the point covered by the request was left to the jury to determine on its recollection of the evidence, and that, coupled therewith, the learned trial judge offered to have read to the jury any special parts of the evidence relevant to the question to which defendant’s counsel might call attention. The trial of this cause was begun on the morning of February 1, 1894, and was not concluded till the ninth; some twenty witnesses were examined on the trial, and the testimony in the case on appeal covers 114 pages. It is unreasonable to assume or expect that, after such a protracted-trial, the court should be able to recall at once the evidence on each particular point involved, and be prepared to say exactly what the evidence was thereon. The course of the learned trial judge in declining to charge the request as a matter of law, and in leaving it to the recollection of the jury to determine on the evidence, together with the offer to have read to -the jury any special parts of the evidence to which defendant’s counsel might call his attention, was eminently fair to the defendant, and we fail to see how this disposition of the request could be in any respect preiudicial to the defendant.

It is further contended that the learned trial judge erred in refusing to charge the following requests by defendant’s counsel : I ask your honor to charge the jury that the testimony of the plaintiff as to whether his knee was cracked shall be disregarded in the light of the testimony of Dr. Speir, Dr. Malone and Dr. Fowler in this case. [Refused and exception.] I ask your honor to charge the jury now that, in no view of the evidence, can there be any recovery in this case on account of any cracked or fractured knee-pan. [Refused and exception.] ”

Immediately previous to the putting of the first of the above requests, a portion of the plaintiff’s testimony as to his injuries was read from the stenographer’s minutes as follows : “ The dashboard turned back and the pin that the bar handle goes onto damaged my left knee, that is, made an incised wound in the left knee. Q. Is that the knee in which you are still lame? A. Yes, sir. Q. Flow deep did it puncture the knee, do you know ? Didn’t it pierce through the knee ? A. It pierced right through the cap, yes, sir. Q. You don’t know how deep it was? A. No, sir; I can’t say how deep. Q. Was your knee affected ? A. It was slightly cracked. Q. The knee-pan? A. Yes, sir.”

Dr. Speir, one of plaintiff’s witnesses, testified that plaintiff had an injury over the right knee; that the left knee had a punctured wound over the patella or knee-cap, and that had penetrated in a way which produced an inflammation of the lining membrane of the knee-joint; that the patella was not fractured in either knee. Dr. Malone, another of plaintiff’s witnesses, testified that when he first saw plaintiff, over two-weeks after the, accident, he “had an injury to both knees there was a wound over the patella of the right knee and a scar over the patella of the left knee,” and both Drs. Speir and Malone testified that the injury to the left knee developed synovitis.

We think that, with this evidence before the jury, coupled with that of Dr. Fowler, the expert witness -on the part of the defendant, it was not the duty of the court to direct the jury to disregard plaintiff’s testimony in any particular. All of the-evidence was before the jury; it was their duty to carefully weigh it all, to reconcile, if they could, apparent discrepancies, and to determine the facts. We can readily see how the plaintiff might have used the word “ cracked ” in the sense of “ punctured ” in describing the injury to his knee-pan, and believed that he was testifying truly. Defendant was not, in our opinion, in any manner prejudiced by the refusals to charge as requested, as the court had already charged, in response to a previous request of defendant’s counsel, that there was no evidence that plaintiff’s knee-cap or knee-pan was fractured, as claimed by plaintiff’s counsel in his summing up.”

In the course of the discussion arising out of the last-mentioned request, the learned trial judge incidentally said: As 1 undei’stand, the testimony is that both of his knee-caps were punctured; that would be a fracture.” To this remark counsel for the defendant excepted, whereupon the trial judge said: That is as I understand the evidence; but, if that is not the evidence, I ask the jury to disregard entirely what I say upon the subject. If counsel will call my attention to that particular part of the evidence,' I will have it read to the jury.” Even if we were convinced that the remark of the trial judge was erroneous and afforded ground for a valid exception, such error was effectually cured by the direction to the jury to disregard entirely what the trial judge had said, and the offer to have read the particular part of the evidence bearing on the question. We do not, however, desire to be understood as holding that the remark of the trial judge constituted reversible error.

For the reasons above stated, the judgment and order denying motion for a new trial should be affirmed, with costs.

Clement, Ch. J., concurs.

Judgment and order affirmed, with costs.  