
    Nettie West, as Administratrix, etc., of Charles E. West, Deceased, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
    
      Negligence — evidence to show that a car inspector was rightfully riding in the caboose of a freight train—secondary evidence of a papes', destroyed by the party offes'ing such evidence, not admitted.
    
    Evidence that a car inspector, often sent by the railroad company employing him to different places, along the road to do his work and accustomed to ride upon freight trains upon permits given by the proper officer of the company, got upon a freight train and exhibited a paper to the conductor, who looked at it and said “ all right,” and that the inspector then put the paper in his pocket, lay down in the caboose of the freight train and was subsequently killed in a rear end collision, justifies the submission to the jury of the question whether the inspector was rightfully riding in the caboose of the freight train. McLennan, J., dissented.
    Where the paper alleged to have been shown to the conductor was destroyed after an action to recover damages resulting from the death of the inspector had been once tried, while an appeal was pending, under circumstances raising a very strong presumption that it was destroyed with the deliberate intention of furnishing an excuse for its non-production upon the second trial, the decision of the court, refusing to admit secondary evidence of its contents, in the absence of any satisfactory reason for its destruction, will not be disturbed on appeal.
    Motion by the plaintiff, Nettie West, as administratrix, etc., of Okarles E. West, deceased, for a new'trial upon a case containing-exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Wayne Trial Term in October, 1899.
    
      S. K. & B. G. Williams and Jenney & Jenney, for the plaintiff.
    
      Albert H. Harris, for the defendant.
   Williams, J.:

The exceptions should be sustained, and the motion for a new trial granted.

The action was brought to recover damages resulting from the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The intestate was riding in the caboose of a freight train. A passenger train ran into the rear of the caboose, and in the collision the intestate was killed. The evidence given on the trial was sufficient to authorize the jury to find negligence on the part of the defendant, and the absence of contributory negligence on the part of the intestate, provided the intestate was rightfully riding on the caboose of the freight train. The nonsuit was apparently granted upon the ground that the plaintiff had failed to prove that the intestate ivas rightfully upon the freight train at the time of the accident. It is undoubtedly true that the freight and passenger service of a railroad are separate and well-defined branches of its business, and that no one has a right, in the absence of consent by the company, to ride upon a freight train unless employed •thereon, and that the burden is upon the jierson so riding to show such consent, and that if a person without such consent rides upon a freight train and is injured, he cannot recover damages, even though his injuries resulted from the negligence of the railroad company, because the company owes him no duty of care. (Eaton v. D., L. & W. R. R. Co., 57 N. Y. 382.)

In the case cited the plaintiff was a stranger, having no business relations with the railroad company. He was riding in the caboose of a freight train, merely by invitation of the conductor, and it was held that the conductor had no authority to bind the company by consenting to plaintiff’s riding on the train. In this case the facts are entirely different. The intestate was, and for four years prior to his death had been, a car inspector in the employ of the defendant. He resided with his mother at Newark, and most of his labor was performed at that place. His foreman was Van Wie, who was located at Newark also. Oar inspectors were often sent to different places along the road to do their work, and the'intestate had frequently been sent out -on the road to do work at different places. The c&r inspectors, when they were so sent out, were accustomed to ride upon freight trains, upon permits given by the proper officer of the company, and the intestate had frequently ridden upon freight trains when so sent out uponjsuch permits. On the day in question he worked during the forenoon at Newark, took an early dinner at his mother’s home, took off his work suit, and put on a better suit of clothes, put his overalls and jacket in a bundle, and taking the bundle with him, went to the station. There his foreman, Van Wie, directed him to go to Weedsport and do some repairs, and if there were any tools there belonging to Newark, to bring them, home with him. The intestate left Newark by the eleven-fifty-five a. m. train and arrived at Weedsport early in the afternoon. Between' three and four o’clock he was in the West Shore yards in his work clothes, near some cars, with tools in his hands, apparently at. work. Between five and six o’clock he was in the streets and in some saloons, had his bundle with him and looked dirty. Between seven and eight o’clock he Was at the station in W eedsport, with his bundle. A passenger train was there, about to go towards Newark. He went up to the conductor of the train, took a paper from his pocket and showed it to the conductor, and talked with him. He did not go to Newark on that train. The next freight train going ■to-Newark was. the one on which the intestate met his death. That train did not ordinarily stop at Weedsport, but always stopped at Port Byron, a few miles away. The intestate got upon that train at Port Byron between one-thirty and two-fifteen at night, and had with him the bundle containing his overalls and jacket. Tobin Was the conductor of this train. The intestate and the conductor were in the caboose after the train started. The intestate took a book from his inside pocket and took from the book a paper and exhibited it to the conductor, handed it to him or laid it on the table and passed it over to the conductor. The conductor looked at the paper and said, “ All right.” The intestate then put the paper back in the book and returned the book to his inside pocket, and laid down on the locker and' was ■ allowed to • ride on the train and in .the caboose until the accident occurred. The intestate had a paper in a book which he carried' in his pocket when he left home that day, and the same paper.in the same book was returned to his mother after his death. This paper was destroyed by plaintiff before the trial, and upon proof of such destruction the plaintiff offered, upon the trial, to prove its contents by parol, that it was a permit to ride upon freight trains, signed by a proper officer of the company, and that the paper that he had when he left home, and which was returned to his. mother after-his death, was the same paper which he exhibited' to the conductor, Tobin, and which the conductor said was “ all right,” and upon which the intestate was permitted, to ride in the caboose until the accident occurred. This parol evidence was objected to as incompetent and immaterial and as not the best evidence, and this objection was sustained by the court. This objection was not specific, and did not point out the real difficulty, which the court and the defendant’s counsel liad in their minds, so as to apprise the plaintiff’s counsel of the real grounds upon which the court excluded the evidence, to wit, that no satisfactory reason had been given by plaintiff for having destroyed the paper itself before the trial. The plaintiff’s counsel asked the court to state the ground of its ruling, but the court refused to do so, further than was indicated by the objections themselves and the ruling sustaining the same.

It is undoubtedly true that in order to make this parol evidence admissible, it was incumbent upon the plaintiff to account satisfactorily to the court for having destroyed the paper itself. (Mason v. Libbey, 90 N. Y. 683.)

No such account was given or attempted. Apparently plaintiff’s counsel did not understand the rule; the objection did not enlighten him on the subject and the court refused to help him.

"Whether the plaintiff could have given any evidence to satisfy the. court, so as to procure the parol evidence to be admitted, we cannot say. No such evidence was offered, apparently because plaintiff’s counsel d.id not appreciate the necessity of giving it. This was hardly fair on the part of the defendant’s counsel and the court. The general rule is that objections to the admission of evidence should be so specific as fairly to apprise the opponent’s counsel of the real grounds of such objection, and thus enable him, if possible, to obviate such objection.

It is undoubtedly true that where the objection is general, and not specific,’the ruling of the court thereon will be sustained, wnless it appears that the real ground of the objection could have been obviated, if it had been specified or disclosed. (Tooley v. Bacon, 70 N. Y. 34, 37; Quinby v. Strauss, 90 id. 664; People v. Place, 157 id. 584, 601.)

But where, as in this case, the objection was so general as not to fairly apprise the opposite counsel of the real ground upon which the ruling was based, and the court and counsel refused to disclose the specific ground of the objection and ruling, and where the objection might well have been obviated, had such disclosure been made, it would be manifestly unjust to sustain the ruling of the court. And especially is this true where the exclusion of the evidence resulted, as it did in this case, in defeating plaintiff’s right to recover, and in the direction of a nonsuit. . •

The court, however, erred in directing a nonsuit; in the absence of .direct proof of the contents of this paper. There- was still evidence enough in the case to authorize the jury to find that the intestate was riding in the caboose of the freight train at the time of the accident upon a written permit signed by a proper officer of the company. It is not essential that a fact necessary to maintain an action should be proved by direct evidence. It may always be •inferred by the jury from circumstances proven, where the circumstances are of such a nature as fairly to lead to such inference. The circumstances proven in this case have already been referred to in detail, and from the circumstances so proven, assuming them to he •true, the jury might fairly have found and drawn the inference that the intestate was an employee of the defendant, as car inspector, at the time of the accident; that as such he was sent to Weedsport to . do work for the defendant; that car inspectors when sent out upon the road to do work were accustomed to ride on freight trains, and . to have written permits from proper officers of the company to so - ride; that the intestate had frequently so ridden prior to the accident in question; that having performed his work at Weedsport he presented his permit to a passenger conductor and was not permitted by him to ride thereon, because it was a permit to ride only on freight trains; that he, then got upon the freight'train in question, presented his permit to the conductor, who said it was all right, and permitted him to ride thereon, and that he was so riding rightfully when he met his death.

In view of the evidence and the inferences which might well be drawn therefrom, a nonsuit should not have been granted. The case should have been submitted to the jury.

More or less discussion was had by counsel upon the argument as to what appeared in the evidence given upon a former trial of this case. It .seems by the report of the case, upon appeal, after such former trial, that a reversal was had in this court upon- the facts. It will be remembered, however, that the case was then submitted to the jury after the evidence had been given on both sides, while the nonsuit on the last trial was granted at the close of the plaintiff’s case, and in the absence of any evidence on the part of the defendant whatever.

More than this, the motion here must be determined upon the present record, and that alone, and nothing appears therein as to the evidence given • on the former trial. The case here must stand or fall upon the record now before us.

For the reasons herein stated, the exceptions by the plaintiff should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide event.

Adams, P.' J., concurred in the result in a memorandum in which Spring and Laughlin, JJ., concurred; McLennan, J., dissented.

Adams, P. J. (concurring):

I concur in the result reached by Mr. Justice Williams upon the ground that the evidence in the case was sufficient to warrant the jury in finding that the plaintiff’s intestate was riding upon the freight train at the time of the accident by permission of the defendant but I do not think it was error to exclude evidence of the contents of the paper destroyed by the plaintiff. The destruction of this paper was accomplished after the case had been once tried, while an appeal was pending, and under circumstances which raised a very strong presumption that it was with the deliberate intention of furnishing an excuse for its non-production upon the second trial.

If the paper was what it is now claimed to have been, its destruction certainly demanded some explanation; and as none was given, I think the case fairly falls within the rule which permits the trial court to determine whether or not secondary' evidence of its contents should be admitted, and that its decision of that question in this instance should be respected by, this court. (Blade v. Noland, 12 Wend. 173; Jackson v. Frier, 16 Johns. 193 ; Steele v. Lord, 70 N. Y. 280; Mason v. Libbey, 90 id. 683 ; 1 Greenl. Ev. § 37; Stephens Dig. art. 71.)

Spring and Laughlin, JJ., concurred.

• Plaintiff’s exceptions sustained and motion for new trial granted, with costs to plaintiff to abide event.  