
    Charles Steinacker, Respondent, v. The Hills Brothers Company, Appellant.
    
      Negligence — injury to a driver standing in front of his team and behind another wagon, from his wagon being struck by a team in the rear — question of contributory negligence—physician’s testimony as to the result of a dissection made when he was not present.
    
    In an action brought to recover damages for personal injuries it appeared that the plaintiff was the driver of one of a.line of trucks which were waiting .to be admitted to a pier on the North river; that there was a space of two or three feet between the pole of the plaintiff’s truck and the rear of the truck in front .of him; that the plaintiff alighted from his wagon [and went into this space for the purpose of adjusting the bridle of one of his horses; that while thus engaged the driver of one of the defendant’s trucks, which was standing directly in the rear of the plaintiff’s truck, undertook to draw out of the line;' that, in so doing, his wagon struck the rear of the plaintiff’s truck, forcing the plaintiff’s team forward and causing the plaintiff to become caught between . the pole of his truck and the wagon in front of him, inflicting injuries upon him which resulted in the amputation of his leg.
    
      Held, that a judgment entered upon the verdict of a jury in favor of the plaintiff should be affirmed;
    That the question whether the plaintiff Was guilty of contributory negligence, in going into the space between his team and the rear of the wagon in front of him, was one of fact to be determined by the jury;
    That, even if the plaintiff were negligent in so doing, if that negligence did not produce the accident, but the accident was caused by the negligence of another, the negligence of the plaintiff was not contributory negligence;
    
      That the plaintiff - had a right to assume that those , in the rear of the wagon would exercise reasonable care not to collide with it;
    That in going into the space in question, between the end of his wagon tongue and the rear of the wagon in front of him, the plaintiff assumed, as a matter of law, Only the dangers which were known and obvious to him, which would include the danger of his own team moving forward upon him, and not the danger of some third person disregarding the duty incumbent upon him;
    That it was for the jury to determine whether the plaintiff had exercised the degree of care which he was required to use under the circumstances;
    That negligence on the part of the defendant might be inferred by the jury from the failure on the part of the defendant's driver to notice that the plaintiff was not on his wagon;
    That a physician who amputated the plaintiff’s leg, and who directed an assistant to dissect the leg after it was removed, might, although he was not present during the time that the dissection was actually in progress, testify as "to the results disclosed by the dissection which he himself saw.
    Appeal by the defendant, The Hills Brothers 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 7th day of May, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12th day of May, 1903, v denying the defendant’s motion for a new trial made upon the minutes.
    
      C. N. Bovee, Jr., for the appellant.
    
      Louis Oppenheim [J. Stewart Ross with him on brief], for the respondent.
   Woodward, J. :

There is no dispute that on the 14th day of September, 1901, between the hours of four and five p. m., the plaintiff, Charles Steinacker, a truck driver, was seriously injured by being caught between the pole of the wagon in his charge, and some boxes on a wagon standing in a line in front of his team, and it is substantially agreed that the plaintiff ■ got down from his seat upon the wagon and went to his horses’ heads for the purpose of adjusting the bridle of the off horse, and that he was injured by the team in the rear of plaintiff’s wagon starting up and coming in contact with the latter, forcing plaintiff’s team forward. It. seems that the plaintiff,, with a load of goods, was seeking admission to pier 26, North river; that he had taken his place in line, with other teams, some ahead and . some behind him, and was waiting his turn to get inside. While thus waiting, moving forward as space was made in front, one of plaintiff’s horses rubbed his bridle partially off, and the plaintiff got down from the wagon, passed in front of the horses.and reached up to adjust the bridle on the off horse. While thus engaged his team was forced or stepped forward, catching him between the pole and the wagon in front of him, producing a hernia, which subsequently resulted in a gangrenous condition of one of his legs, rendering amputation necessary. The evidence indicated that there was but little space between the teams, and that there was the usual crowding for positions, and there was some evidence that the defendant was the owner of the team and wagon directly in the rear of the plaintiff’s wagon, and that the driver undertook to draw out of the line, and that in so doing his wagon struck the rear of plaintiff’s wagon, producing the forward movement which resulted in the accident. The trial resulted in a verdict for the plaintiff of $5,000, and from the judgment entered, appeal comes to this court.

It is urged on appeal that the plaintiff was guilty of contributory negligence, and we are free to say that had the jury taken this view of the question its conclusion might easily be sustained. Taking into consideration the conduct of drivers of freight vehicles, knowing the disposition of mankind to crowd for position in every walk of life, a jury might very properly have held that the plaintiff had not exercised that degree of care which a reasonably prudent man would or should have used under the circumstances. And yet, it was peculiarly a question of fact to be determined by the jury, for the evidence quite fully disclosed all of the facts and circumstances surrounding the accident. The plaintiff had a right to go where he went for the purpose of adjusting his bridle; he had a right to assume that those in the rear of his wagon would exercise reasonable care not to collide with his wagon, and if there had been no collision, in the view which the jury took of the evidence, the injury to the plaintiff would not'have resulted. The plaintiff ingoing into this space of two or three feet between his wagon tongue and the rear of the wagon in front of him, assumed, as a matter of law, only the dangers which were known and obvious to him, which would include the danger of his own team, left withbut a driver, moving .forward upon him, and not the danger of some third person disregarding his duty, and it was for the jury to determine whether the plaintiff, by this conduct, had exercised that degree of -care which he was called upon to use under the circumstances. Assuming that the plaintiff’s team did not move forward of its own accord, and the jury has determined that it did not, in the absence of the defendant’s negligence the accident would not have occurred, and even though it might be said that the plaintiff was negligent in going into this position, if that negligence did not operate to produce the accident, it was not contributory negligence. It may have been careless of him, considering the things that might happen, but the accident which did happen was not caused by his presence in that position, but by the negligent' conduct of the defendant’s driver, and upon this is predicated the liability.

While the evidence of the defendant’s negligence is not as clear as might be desired, we are unable to say that there was not sufficient evidence to support the finding of the jury. It is true, perhaps, as suggested by the appellant, that there is no direct evidence to show that the defendant’s driver had any notice of plaintiff’s position and danger, but there was evidence of the circumstances surrounding all of' the parties, and in the absence of special conditions, it may be assumed that the driver of a wagon in the immediate rear could, by the use of his eyes, have discovered that the plaintiff was not on the wagon and in control of his team, and this would have been notice to him that the situation required a higher degree of care than would be necessary if the plaintiff was in his seat on the wagon, and would impose the duty of acting accordingly. A slight exertion would have discovered the position of the plaintiff, and an element of negligence might be properly inferred from a failure on the part of defendant’s driver to make this observation, in view of the obvious danger of running into a team which was wit]> out a driver upon the wagon or in control of his horses.

Perhaps the most stubbornly contested point in the case was the identity of the defendant’s driver and team. The defendant made a strong effort to show that it had no team at this dock at the time of the accident, attempting to account for 'all of its teams and drivers upon that day, and the jury might have found, from the evidence, that the plaintiff had failed to establish that the defendant was liable for the accident. But. there was evidence in support of the plaintiff’s theory, evidence of a persuasive character, and of sufficient weight to support the verdict. The case was submitted to the jury upon a charge which, as concluded, was without objection or exception by either party, all of the requests of the defendant having been charged, and we see no reason for disturbing the judgment.

The defendant urges that error was committed in permitting certain questions to be answered by the doctor who amputated plaintiff’s leg. He had testified to the amputation, and that after the amputation “ I made an examination to determine what had caused the gangrene of the leg. I had something done. I did not do it myself. It was done under my supervision.” Asked, “ What was it \ ” the witness started to reply and was interrupted by defendant’s counsel, who asked: “ Did you see it done ? ” Answer, “ I saw the results. Q. Were you present when it was done? A. No. Mr. Bovee: Then I object to it. The court: He said he saw the results. If he saw the sections he may answer. Mr. Bovee: I object to it as incompetent, and except.” The doctor tlien replied: “ I had a section made of the amputated part, and this dissection disclosed a-clot in the lower part of the femoral artery.” He explained that this was a clot of blood, and was asked where it was located. Defendant’s counsel objected to this as incompetent “ unless the doctor knows. The court: Of course, he is asked for his knowledge. Objection overruled. Defendant excepts.” The witness then answered, giving the location of the clot. The last objection was not absolute; it was only “ unless, the doctor knows,” and the . evidence was admitted upon the .theory that the doctor did know, for he testified positively after the court, had stated that the question asked only for the knowledge of the physician. We think it was competent for the physician Who made the amputation to direct an assistant to dissect the leg after it was removed and to testify as to the results which he saw. It was not. necessary that he should have been present during the time the dissection was actually in process; it was enough if he knew the facts to which he testified.

We have examined the further exceptions in this case, but without finding reversible error.

The judgment and order appealed from should be affirmed, with costs. ' '

Judgment and order unanimously affirmed, with costs.  