
    Matilda P. Hamel, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      jNegligence—proof of impairment of hearing—absence of proof that the accident could, hare caused- it—the objection must be taken by motion to strike it out — client not bound by his attorney’s attempt to influence a witness — charge as to the preponderance of proof.
    
    Where the complaint in an action to recover damages for personal injuries alleges an impairment of the plaintiff’s hearing as an element of damages, the testimony of a lay witness as to what she had personally observed in respect to any difference in the plaintiff’s hearing before and after the accident is, as partial proof, competent, and the objection, that such testimony was not connected with the accident by proof that impaired hearing could have resulted from the accident, is not available to the defendant where it made no motion to strike out such testimony because of the absence of such proof.
    The agency involved in the relation of attorney and client is not such as to render competent, against the client, evidence of an alleged attempt on the part of her attorney to induce a witness called by the adverse party to testify falsely, where no evidence is given in any way connecting the client with such attempt.
    In an action to recover damages for personal injuries, it was considered that it was not error for the court to refuse to charge the jury “that if they are in doubt, after hearing all this testimony, they must give their verdict for the defendant,” on the ground that if the request was another form of the statement that the plaintiff was bound to prove the controverted facts by a preponderance of credible testimony, it was a reiteration of another part of the charge, and that if it required a higher standard of proof from the plaintiff, it was unauthorized.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Oourt in favor of the plaintiff, ■entered in the office of the clerk of the county of Kings on the 4th ■day of June', 1900, upon the verdict of a jury for $3,041.66, and ■also from an order entered in said clerk’s office on the 12th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      John L. Wells, for the appellant.
    
      Thomas E. Pearsall, for the respondent.
   Jenks, J.:

The plaintiff recovered a verdict for $3,000 damages for personal injuries caused by the negligence of the defendant, and the defendant appeals from the judgment and from an order denying a motion, for a new trial. The plaintiff, a passenger on a car of the defendant,, alleged that while she was alighting from a car the car was started,, whereby she was cast down upon the street and injured. Her testimony and that of her husband tended to sustain her allegation,, while the testimony pf the defendant tended to show that she stepped from the car while it was in slow motion. The issue presented a question for the jury, and there is not sufficient preponderance of' testimony for the defendant to justify a reversal of the judgment.

' The appellant contends that there are errors in certaih rulings- and in a refusal to charge the jury.

I. Among other injuries specified, the plaintiff complained that her hearing was injured by the accident. She was asked : “ How was-your hearing before this accident on the 5th of July, 1898 ? A. Good. The Court: That may be stricken out.” Emily Bogart, called by the; plaintiff, testified that she had known the plaintiff for twenty years that her-hearing was perfectly good before the accident, and that she: had talked with her many times. Q. Have you noticed any difference in her hearing since the accident? A. I have. Objected to-unless connected with this occurrence. Q. Right after this injury what did you notice as to her hearing ? Objected to. The Court: I will permit the witness to state any difference that she has noticed in the hearing after the accident. Defendant excepts. The Court l That is, any observations that she has made. Mr. Day: Hnless it is-based on something to show a connection with this accident. Defendant excepts.” Thereupon witness stated that the .plaintiff could not hear as well, and that she had noticed that plaintiff turned her other-ear towards her to hear moré distinctly, which she had not done, before the accident. No further evidence from any source was. offered upon this subject, save that the plaintiff’s husband testified,, “ my wife’s hearing was good before this accident.” The learned, counsel for the appellant argues that it cannot be said that the jury did not consider this alleged impairment of hearing as an element of damage, and yet it was not properly proven in that, it was shown. ■ only that this impairment supervened after the accident without proof of causal relation. ' There is much force in his contention. (Saumby v. City of Rochester, 145 N. Y. 81, 83; Shearm. & Redf. Neg. § 742.) But the difficulty is that he cannot raise the question. The fault with this evidence is that it is unconnected with any testimony showing or tending to show that the impaired hearing resulted from the injuries suffered by the plaintiff. The plaintiff has pleaded the specific injury. It was competent to show the present physical condition of the plaintiff with .reference to her powers of hearing, and the testimony of the lay witness as to what she had personally observed was competent. (Adams v. People, 63 N. Y. 621; King v. Second Avenue R. R. Co., 75 Hun, 17; affd., 148 N. Y. 739.) If this evidence had been connected with testimony of witnesses, competent to speak upon the point that impaired hearing could have resulted from the accident, then a fair question would have been presented for the jury whether there was such injury and whether it was the direct result of the accident. The testimony now criticized was material then as partial proof, and has no place in the case only because the other part of the proof was never supplied. ■ When the plaintiff failed to supply such proof the remedy of the defendant was a motion to strike ont the objectionable testimony. United States Vinegar Co. v. Schlegel (143 N. Y. 537) is directly in point. It was held in that case : “ When evidence tending to prove a material fact in issue is received under objection, and which requires proof of other facts to make it complete which have not. been supplied, its presence in the record is no ground for reversal in the absence of a motion subsequently to strike it ont.”

II. Defendant’s counsel asked its witness Bradley on redirect examination: “ What did Mr. Pearsall (the plaintiff’s attorney and counsel) say to you about forgetting this, asking you to forget about having seen this accident ? Objected to as incompetent; objection sustained; exception taken.” The question is addressed to defendant’s own witness. It does not clearly appear that any conversation between Mr. Pearsall and the witness had been called forth on cross-examination. The learned counsel for the appellant concedes that “ the evidence sought to be introduced did not directly impeach any witness produced upon the trial,” but claims that the evidence is competent against the plaintiff for the reason- that it shows an attempt on the part of her attorney to induce a witness to testify falsely! • It is not alleged that there is any evidence to connect the plaintiff with any attempt to induce the witness to testify falsely Or conveniently to forget, or to show that plaintiff had seen the witness at any time, or that plaintiff took part in the preparation of the case for trial. I think that the agency involved in the relation of attorney and client cannot be applied so as to hold the client responsible for an alleged attempt of the. attorney to commit a crime (Penal Gode^ §§ 105, 112), independent of all evidence in any way connecting the client with the attempt, so as to permit in the action testimony of the alleged attempt of the attorney when such testimony is offered only on the principle that it is competent to show such an attempt if it had been made by the plaintiff herself. The authority of the attorney under the retainer is only to do lawful acts. (Averill v. Williams, 1 Den. 501, 504; Welsh v. Cochran, 63 N. Y. 181.) And it will be assumed that the common purpose of the client and the attorney was fairly to obtain, properly to prepare and honestly to present her claim before the court. Until some evidence was given or until it was stated that there was evidence at hand ready to be put in, that the plaintiff was party.or privy to a design to commit' such crime, then the testimony was neither relevant nor competent upon the question of .plaintiff’s credibility as a. witness. Wot constat but that her case was meritorious aside from any such attempt of her attorney to strengthen it. In this case the alleged attempt failed, and the witness testified in favor of the defendant, and the jury has pronounced that the plaintiff’s case, was meritorious. If it could be shown that the attempt had succeeded, so far as in any way to affect the case, then the remedy was at hand, based upon the inherent power of the court over its own judgment. (Furman v. Furman, 153 N. Y. 309, 314.) But the sole question before us is whether, under the circumstances, the ruling was reversible érror so far as the judgment and order are concerned. I think that it was not. Assume that the witness had been permitted to answer -that the plaintiff’s attorney had sought to suppress or to change his testimony. Plainly, the attempt, if made, had failed, for the defendant does not quarrel with his witness, .and there is not a vestige of testimony even suggested that plaintiff had the slightest concern with the affair.

In justice to Mr. Pearsall, the attorney and counsel, it should -clearly be understood that the record does not show that any attempt was made. I simply discuss the question of the ruling upon the assumption that the witness might have testified to this thing, and that his testimony might have been credited.

III. At the close of the charge the learned counsel for the defendant asked the court “to charge the jury that if they are in doubt after hearing all this testimony they must give their verdict for the defendant.” The court declined, and defendant excepted. Such request, if charged, might have been construed by the jury as a statement by the court that the plaintiff could not prevail if there was any doubt in the minds of the jury, or that she must prove her case to the satisfaction of the jury beyond a doubt, and not merely by a clear preponderance of the credible evidence. The learned counsel for the appellant quotes this excerpt from the opinion in Hale v. Smith (78 N. Y. 480): “ If the evidence left the jury in doubt whether the in jury was occasioned by the fault of defendant’s intestate alone, or was caused or contributed to by the viciousness of the horse, the defendant was entitled to the benefit of that doubt, and the plaintiff had failed to make out his case.” But' the learned counsel apparently omitted to notice that Rapadlo, J., in the very next sentence said : “ This is only stating in another form the proposition that the plaintiff was bound to prove the controverted facts by a preponderance of testimony.” Dünwell, J., the learned trial justice, had charged the jury that the burden was upon the plaintiff to establish the essential features of her case by a fair preponderance of the credible testimony in the case, and he had further charged that if, upon the conflict of testimony, the plaintiff had not proved her case by a preponderance of testimony, but the testimony stood equal, there could be no recovery by the plaintiff, because it was incumbent upon her to prove her case by a fair preponderance. If the request under review was only stating in another form that the plaintiff was bound to prove the controverted facts by a preponderance of .credible testimony, then it was not error for the court to refuse reiteration. (Rommeney v. City of New York, 49 App. Div. 64.) If it required a higher standard from the plaintiff then it is -counter to the law. (Farmers' Loan & Trust Co. v. Siefke, 144 N. Y. 354; Whitlatch v. Fidelity & Casualty Co., 149 id. 45; Long v. Fong, 25 N. Y. St. Repr. 28 ; Stearns v. Field, 90 N. Y. 640; New York Guaranty & Ind. Co. v. Gleason, 78 id. 503; Tholen v. Brooklyn City R. R. Co., 10 Misc. Rep. 283; aft’d., 151 N. Y. 627.) The appellant may accept either horn of the dilemma.

The judgment and order must he affirmed, with costs.

Judgment.and order unanimously affirmed, with costs.  