
    (86 App. Div. 365.)
    FISHER v. UNION RY. CO. OF NEW YORK CITY.
    (Supreme Court, Appellate Division, Second Department.
    July 24, 1903.)
    •L Street Railways — Collision with Team — Negligence. .
    The motorman of an electric car which runs into a wagon' in a fog may he negligent in running at a high speed, though he discovers the peril as soon ras possible, and does everything in his power to avert collision, as the peril, though not sooner discovered, might be averted but for the .speed.
    
      
      2. Same — Credibility of Witness.
    The credibility of the motorman of a car which runs into a wagon, and who testifies that he discovered the peril as soon as possible and did everything in his power to avert collision, is for the jury.
    3. Same — Evidence of Speed — Competency of Witness.
    A passenger on an electric car, a civil engineer of 11 years’ experience, once connected with the railroad business, and accustomed to time the speed of cars by the watch, is competent to testify to the speed of the car.
    Appeal from Trial Term, Westchester County.
    Action by Anna Fisher against the Union Railway Company of New York City. From a judgment for plaintiff, and from an order denying a motion for new trial made on the minutes, defendant appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
    W. J. Townsend, for appellant.
    Chas. Pope Caldwell (Maurice E. Connally, on the brief), for respondent.
   HIRSCHBERG, J.

The plaintiff was injured while a passenger on one of the defendant’s cars, and which was run through a dense fog into a wagon on the track ahead of it. There was evidence that the car was running at the time as rapidly as 15 miles an hour. The only exceptions taken by the defendant were to the refusal of the learned trial justice to nonsuit the plaintiff, and to the evidence referred to as to the speed of the car.

Neither exception is availing. As to the first, it is urged that there was no negligence established, inasmuch as the motorman, according to his evidence, discovered the peril as soon as possible, and did everything in his power to avert the collision. This argument overlooks the fact that his credibility was a proper consideration for the jury. Moreover, the negligence asserted consisted in the speed of the car under foggy conditions, but for which the peril, even if not sooner discovered, might have been successfully averted. The question was submitted in a charge which was favorable to the defendant, and which included every request made by it.

The witness who testified to the speed of the car was a passenger on the occasion in question, a civil engineer of 11 years’ experience, at one time connected with the railroad business, and accustomed to time the speed of cars by the watch. That such a person was competent to testify to the speed of a car has been frequently held, among other cases in Salter v. Utica & Black River Railroad Co., 59 N. Y. 631; Northrup v. New York, O. & W. R. Co., 37 Hun, 295, 299; Scully v. New York, L. E. & W. R. R. Co., 80 Hun, 197, 30 N. Y. Supp. 61; Strauss v. Newburgh Electric R. Co., 6 App. Div. 264, 39 N. Y. Supp. 998; Penny v. Rochester R. Co., 7 App. Div. 595, 40 N. Y. Supp. 172; and Garduhn v. Union Railway Co., 50 App. Div. 602, 64 N. Y. Supp. 210.

The damages cannot be regarded as excessive, notwithstanding there was no proof of permanent injury.

The judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs. All concur. 
      
       3. See Evidence, vol. 20, Cent. Dig. § 2202.
     