
    Clara J. Bogart, Adm’rx, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    1. Negligence—Defective bridge—Charge.
    In an action to recover damages for the death of plaintiff’s intestate through the negligence of defendant, the issue was whether a bridge on a line of railroad leased and operated by defendant contained defects with which defendant was chargeable,and after instructions as to a lessee’s right-to rely on the sufficiency of a bridge’s abutments unless there were apparent defects, the court stated that there was no evidence to show any reason for suspecting that the south abutment was not properly constructed, the evidence relating entirely to the north abutment, and said that if “the abutment ” was properly constructed and properly inspected defendant was-entitled to a verdict. The court next instructed in reference to defendant’s duty as to the size of the space between the abutments that should be maintained, and in conclusion said: “ So it will he for you to say whether the plaintiff has established by all the evidence that these abutments were improperly constructed,” and if so, whether defendant was negligent in not finding it out and making the necessary repairs. Held, that by the conclusion of the charge the court did not leave to the jury the question of whether or not there was an apparent structural weakness in the south abutment, but simply questions relating to the size of the spaces between the abutments.
    3. Evidence—Harmless error.
    It is harmless error to allow defendant’s witness to he contradicted without laying proper foundation therefor, where the subject upon which the witness testified was taken from the jury by the court on the ground of no evidence for plaintiff.
    
      Appeal from a judgment entered upon a verdict at the Livingston circuit and from an order denying defendant’s motion for a new trial and from an order denying defendant’s motion to set aside the verdict on the ground of irregularity.
    
      John G. Milburn, for app’lt; E. F. Babcock, for resp’t.
   Haight, J.

This action was brought to recover the damages sustained in consequence of the death of Hoyt M. Bogart, plaintiff’s intestate, caused by the alleged negligence of the defendant.

The deceased was a fireman on one of the passenger trains of the defendant. On the night of July 5, 1888, the engine upon which he was working plunged into McKercher creek and he was killed. A heavy storm was raging at the time and the railroad bridge spanning the creek had been washed away, including all of the south abutment and a good portion of the north abutment. The railroad, including the bridge was originally built and is owned by the New York, Lackawanna & Western Bailway Company. In 1882 it was leased to the defendant, by whom it has since been operated. It is not claimed that the defendant is liable for defects in the original construction of the bridge, but is liable if such original defects existed in its construction and were or could have been ascertained by the defendant by proper inspection after it had entered into possession under its lease.

Upon the trial it was claimed on behalf of the plaintiff that the foundation of the abutment was laid on a wet bottom containing quick sand; that instead of being laid by courses of masonry, field and cobblestones were thrown in as backing and .that the mortar used was worthless ; that in 1887 a portion of the north abutment had settled so that a crack appeared and during a freshet several of the stones were washed out, and that at that time the structural defects of the abutment were apparent. It .was then repaired, but in the following October another crack appeared. Evidence upon this contention was given pro and con.

In submitting the case to the jury the defendant’s counsel asked the court to charge that “ If under the evidence the jury shall find that thq cause of this accident was this extraordinary 'flow of water in some way causing the destruction of the south abutment, that the plaintiff is not entitled to recover.” The court refused to so charge, and to such refusal the defendant’s counsel took an exception. Upon the theory upon which the case was tried and submitted by the court the request was proper and should have been charged, unless it was a mere repetition of that which the court had already charged.

It is conceded that the court had in substance charged the matter embraced in the request, but it is claimed that in a subsequent portion of the charge the court had left it to the jury to determine whether there was an apparent structural weakness in the south abutment which ought to have been discovered by the defendant before the accident. We think, however, that1 the charge of the court is not faulty in this respect. The judge in his charge, after giving general instructions as to the duty of railroad corporations in the maintenance and inspection of their bridges, proceeds to state that “ There is not any claim on the part of anybody that when these abutments were turned over to the defendant there was any outward sign of weakness about them or that there was anything which should immediately put the defendant upon notice that the abutments were not properly built. The defendant, unless there was some outward sign of weakness about them, had a right to rely upon their being properly constructed and was not chargeable with any of the faults of the original construction, and although they may have been improperly constructed yet the plaintiff cannot recover in this action unless you shall come to the conclusion that the defendant might have discovered the imperfect construction by a proper system of inspection and failed so to do. There is no evidence whatever directly bearing upon the south abutment which tends to show there ivas any reason to suspect that it was not properly constructed; that is, there was nothing in the abutment itself or any of the indications surrounding it which should or toould give any careful man any reasonable cause to suspect that it was not properly constructed. The evidence in that regard has been devoted entirely to the north abutm.e?it.n He then proceeds to call attention to the history of the north abutment, its construction, the defects that appeared therein; and concludes: “If you shall come to the conclusion that the abutment was properly constructed, and that the defendant kept it properly inspected, and that it was properly made at the time this accident occurred, then the plaintiff is not entitled to a verdict, but the defendant performed its duty towards Bogart, and is entitled to a verdict at your hands.” It thus appears that the court did not submit to the jury any question in reference to the structural defects of the south abutment; that as to such defects he specifically limited their consideration to that of the north abutment, and this was done in such clear and concise language as to leave no room for doubt. This is in accordance with the request, and is not complained of. The court next proceeded to instruct the jury in-reference to the duty of the railroad company as to the size of the throat or the space between the abutments that should be maintained in its bridges over streams, and called attention to the magnitude of the freshet on the occasion in question, and then stated that it was the duty of the defendant to provide a bridge, the opening of which was of sufficient capacity not only to meet all the ordinary exigencies of the climate and the situation of the stream, but such extraordinary exigencies as the experience of the people about there would lead them to believe might sometimes occur, although infrequently, and in concluding charged: “ So it will be for you t'o say whether the plaintiff has established here by all the evidence in the case that these abutments were improperly constructed, and if they were improperly constructed then whether or not the defendant after it took possession of this road was guilty of negligence in failing to find out they were improperly constructed and to see that they were properly constructed.”

It is this portion of the charge that is claimed to be inconsistent with that previously referred to; but as we have already pointed ■out, the subject of the structural weakness of the abutments was ■considered and closed by the court, in which the consideration of the jury upon that subject was limited to the north abutment, and they were plainly instructed that there was. no evidence tending to show that there was any reason to suspect that the south abutment was not properly constructed. The court then proceeded to charge upon an entirely different subject, that pertaining to the size of the throat or the space between the abutments of the bridge, and as we understand the concluding portion of the charge, in speaking in reference to whether the abutments were improperly constructed, had reference to their construction as to size of the throat of the bridge, and not to their structural weakness.

Upon the trial one Hubbell was sworn as a witness for the defendant and testified that he remembered the construction of the south abutment of the bridge ; that he had charge of the digging of the south foundation pit, and gave evidence tending to show proper construction of that abutment, but stated that he did not see any of the north abutment dug. Upon cross examination the plaintiff’s counsel asked him if he did not state to either Mr. Sisson or to Mr. Miller, after the bridge fell, “ That you were surprised that the damn thing did not go out before,’’ to which the witness replied, that he had no recollection of ever saying such a word to anybody. The plaintiff then recalled Sisson and asked him as to whether Hubbell had stated to him in substance “That he was surprised that the damn thing did not go out before.’’ To this question defendant’s counsel objected as immaterial; that Mr. Hubbell was not specifically interrogated in regard to the time and place of this conversation as required by the rules, and that it was immaterial and collateral. The objection was overruled and the witness was permitted to answer the question in the affirmative.

The rule is well settled that in laying the foundation to contradict a witness that his attention should be called to the time, place and persons to whom or in whose presence the alleged statement was made. Hart v. Hudson River Bridge Co., 84 N. Y., 56-60; People v. Weldon, 111 id., 569-575; 20 St. Rep., 112; Ankersmit v. Tuch, 114 N. Y., 51-55; 22 St. Rep., 300.

But we are of the opinion that the admission of this evidence, if error, was cured by the charge. As we have seen, bis evidence related solely to the south abutment The contradicting of him by the other witness' did no harm, for the judge took from the jury the subject of the structural weakness of that abutment, and limited their consideration upon that subject to the north abutment only.

We have considered the other questions raised, b.ut find nothing that requires a reversal.

The judgment and orders should, therefore, be affirmed.

Dwight, P. J., and Lewis, J., concur.  