
    Sarah C. Terwilliger, as Admimstratrix, etc., of William G. Terwilliger, Deceased, Respondent, v. The Long Island Railroad Company, Appellant.
    Second Department,
    July 25, 1912.
    Railroad — negligence — collision with, automobile —? contributory negligence of passenger—negligence of driver not imputable to passenger — evidence—motion to strike out — damages.
    Where, in an action to recover for the death of plaintiff’s husband due to the alleged negligence of the defendant in the operation of one of its trains at a-crossing, it appeared that the decedent was invited to accompany the driver and owner of an automobile; that at the time of the accident he was engaged in conversation with a third person who occupied the rumble seat; that it was open country and broad daylight, and there was no reason to believe that the driver was not a careful man, it cannot be said as a matter of law that the deceased was guilty of contributory negligence, although he was familiar with the country.
    The negligence of the driver of the automobile was not imputable to the decedent.
    
      Admission of evidence tending to show that decedent was not familiar with the locality was not so prejudicial as to justify a reversal of a judgment.
    Testimony by a witness that she exclaimed just before the accident, “ Why don’t they blow that whistle ? ” was competent upon the issue as to whether the defendant gave any warning of its approach to the crossing.
    Where testimony is admitted without objection, it is not error for the court to refuse to strike it out; the remedy is by a request to instruct the jury to disregard it.
    A verdict of $40,000 is not excessive for the death of a physician who at the age of thirty-five years was earning $5,000 per year.
    Thomas, J., dissented.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered'in the office of the clerk of the county of Kings on the 18th day of December, 1911, upon the verdict of a jury for $40,000, and also from an order entered in said clerk’s office on the 11th day of December, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      William C. Beecher [Joseph L. Keany with him on the brief], for the appellant.
    
      Augustus Van Wyck [Meier Steinbrink and George W. Martin with him on the brief], for the respondent.
   Woodward, J.:

This is an action to recover damages for the death of plaintiff’s husband, due to the alleged negligence of the defendant in the operation of one of its trains on the 3d day of October, 1909. It appears from the evidence that Dr. Terwilliger, plaintiff’s intestate, was invited to accompany a Mr. Welsh in his automobile to Long Beach on the day in question, and that Dr. Terwilliger and Mr. Welsh were accompanied by a Mr. Rhoades, who occupied the “rumble ” seat upon Mr. Welsh’s roadster, and who was at the time of the accident leaning forward, talking to Dr. Terwilliger. Mr. Welsh owned the car and was driving the same, and there is no suggestion that Dr. Terwilliger had any authority or control over it or its driver. He was merely a guest of Mr. Welsh, and there is nothing to overcome the presumption that Mr. Welsh was operating the car in a lawful manner and that he was a reasonably prudent man, competent to drive the car. There is nothing in the record to show that Dr. Terwilliger had any reason, to suppose that Mr. Welsh was not a careful man or that he had any reason to exercise any other degree of bare than that which is incumbent upon all men, and that is that reasonable care which a reasonably prudent man should or would have exercised under the same circumstances. He was a passenger — a guest — in a car operated by a friend, and while he could not close his eyes to an obvious or well-known danger, he was not called upon'to exercise any active vigilance to guard against a danger which? was not known to him or which was not likely to befall one! situated as he was in this car. He had a right to assume that Mr. Welsh, his friend, would exercise reasonable care in the operation of his car, and unless he was aware of the railroad crossing and had reason to apprehend that Mr. Welsh would run his car into a position of danger, the jury might properly find that he was in the exercise of that reasonable degree of care which an ordinarily prudent man would exercise under like circumstances by merely sitting still in his seat and talking with a fellow-passenger. That is probably what seventy-five per cent of the persons who go out for a drive with their'> friends do under the circumstances. They have no power over the car, no authority over the driver, and, while they would not be free to ride with a reckless driver, knowing the fact, and charge their misfortunes upon others, we do not think it can be said that there is a failure to produce evidence of a lack of contributory negligence where it appears, as it does here,that the plaintiff’s intestate was sitting in his seat engaged in a conversation with a fellow-passenger who Was occupying the seat behind him, and who was leaning forward for the purpose of carrying on the conversation, leaving the driver free to manage the car. Of course if the passenger was familiar with a known danger, if he was better informed of the circumstances than the driver, it might be his duty to watch and point out the danger, but here the car was being driven upon a flat land in broad daylight, and at an angle with the railroad track, which had been crossed some distance back, and which was to be crossed again at grade. It was an open country, and, assuming that the plaintiff’s intestate was familiar with the country—which is the most favorable view for the defendant — it cannot be said as a matter of law that he was bound to anticipate that Mr. Welsh would drive upon the crossing without observing the situation and taking the necessary precautions. If there had been nothing to divert his attention he might have been called upon to observe the situation in common with Mr. Welsh and to protest against taking any risks, but the evidence shows that he was engaged in talking with Mr. Ehoades, who was behind him, and he certainly was not called upon to be alert and active to see to it that Mr. Welsh did not drive upon a railroad track which was in his immediate view in the face of an oncoming train. True, the jury might have held that this was not that reasonable degree of care which the circumstances demanded, but we cannot say, as a matter of law, that, taking the most favorable view of the evidence, the plaintiff’s intestate was guilty of contributory negligence, nor caffiwe say that there was not evidence in the facts and circumstances to justify a jury in saying that he was in the exercise of reasonable care. The negligence of Mr. Welsh, if it was negligence, is not to be imputed to plaintiff’s intestate; the only question for the jury, assuming the negligence of the defendant, is whether the evidence shows the plaintiff’s intestate to have been free from negligence contributing to the accident, and we think the circumstafices disclosed justified the jury in finding in behalf of the plaintiff upon this question.

This view of the case* disposes, practically, of the principal objection urged upon this appeal, for if the evidence is sufficient to warrant a judgment in favor of the plaintiff, upon the theory that the plaintiff’s intestate knew the locality, then the admission of evidence tending to show that he did not know the locality, which the jury was subsequently directed to disregard, could not be of such a prejudicial character as to justify the reversal of a judgment, assuming "the ruling to have been erroneous in the first instance. The evidence specially objected to was given by Mr. Ehoades. He was asked, “Was anything said about going to Long Beach between you ? ” He answered, “Yes, sir; Mr. Welsh said, ‘Let us go down to Long Beach; I have never been down there before, and we might as well go down.’ Dr. Terwilliger and myself both said, ‘Yes, let’s go down.’ ” Objection was made to this as being inadmissible and hearsay, and after some discussion, in which it appears from the record that it was assumed that the witness had testified that Dr. Terwilliger had said that he had never been to Long Beach, although no such testimony had been given, the court announced that the answer would be retained in the record, and that defendant’s ■ counsel might aslt for a proper direction to the jury. Counsel promised to make the request at the proper time, and then took an exception to the ruling. Subsequently the court distinctly called attention to this testimony and directed the jury to disregard it. It is to be remembered that this testimony was-in the case without objection, and under such circumstances it is not error for the court to refuse to strike it out; the remedy is by a request to the court to instruct the jury to disregard it. (Marks v. King, 64 N. Y. 628; Cole v. Fall Brook Coal Co., 159 id. 59, 65.)

It is also urged that the court erred in permitting Mrs. Wilson to testify that she saw the accident and that she exclaimed, just at the moment of the approaching collision, “Why don’t they blow that whistle, the people in that car don’t see that train.” The court subsequently struck out the declaration “ the people in that car don’t see that train,” and permitted the remainder of the exclamation to remain, the defendant taking an exception. The issue to be determined was whether the defendant had given any warning on its approach to this crossing, and it was clearly competent for the plaintiff to prove that no whistle was blown, and this witness had testified that she heard no whistle, and the fact that she made an exclamation at the very crisis of the transaction, referring to the fact that no whistle was blown, seems to us to be competent; it was a fact which showed that her attention was directed to the very matter in issue. It was not evidence of the fact that the whistle was not blown; it was merely a fact showing that the witness, in testifying that she heard no whistle, was testifying to a matter to which her attention was directed at the time, and is not more objectionable than any other statement of fact which would show that she was in a position and in a frame of mind to know whether the whistle was blown or not. If she had testified that she looked to see if there was escaping steam, indicatiñg tire blowing of the whistle, it would not have been objectionable. Indeed, this very question was asked and answered by this witness without objection, and we are persuaded that the question objected to was not less open to objection.

We think the charge of the court was as favorable to the defendant as could be justified by the facts in this case, and that there were no errors requiring a reversal of this judgment. It is true that the verdict is large, but it is true that the plaintiff’s intestate was a doctor, who, at the age of thirty-five years, was earning $5,000 per year. A. practice of that amount at thirty-five gives a fair promise of a larger and more lucrative practice during the active years of his life, and he had a considerable expectancy at that time. We think the verdict is not so far excessive as to warrant this court in reducing it, and that it should not be disturbed.

The judgment and order should be affirmed, with costs.

Hirschberg, Carr and Rich, JJ., concurred; Thomas, J., dissented.

Judgment and order affirmed, with costs.  