
    David Mossemann, Resp’t, v. The Manhattan Railway Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 2, 1890.)
    
    1. Negligence — Elevated railroads.
    Plaintiff was injured by a crow-bar falling from defendant’s road, where it had been in use by an employee making repairs. No contributory negliigence was alleged. Held, that the court correctly held that a prima facie case of negligence was made out by this fact, and that the fact that it was dropped through the employee’s effort to save himself from falling did not overcome the presumption of negligence.
    2. Same — Charge.
    It is not the province of the court to ask the jury to say whether this or that omission of suggested precautions in itself constituted negligence, but to instruct them to determine from all the evidence and under the circumstances disclosed whether defendant had been negligent.
    3. Same — Evidence.
    It is not error to admit evidence of the amount of physician’s bills which plaintiff had paid without proof of the value of the services.
    Appeal from judgment in favor of plaintiff for $5,354.97, entered on verdict
    
      Howard Townsend and Alexander S. Hyman, for app’lt; William 0. Campbell, for resp’t.
   Larremore, Ch. J.

The plaintiff, while driving under defendant’s elevated railway structure in Third avenue, on the 14th day of November, 1888, was injured by a crow-bar falling from such structure, which was in use by an employee making repairs to the track. The facts of the injury and its cause are undisputed, and no contributory negligence is alleged. The trial judge correctly held that a prima facie case of negligence was made out, see Maher v. The Manhattan Railway Co., 53 Hun, 506; 26 N. Y. State Rep., 742, and properly ruled that the fact that the crow-bar was ■dropped through the employee’s effort to save himself from falling did not overcome the presumption of negligence. This latter question is necessarily bound up and a part of the general inquiry whether suitable precautions were taken for the safe conduct of the work in its entirety.

The learned counsel for appellant contend that the judge erred in his charge in the too great latitude it gave the jury to determine whether proper precautions had been taken. They argue that the jury were invited to make affirmative suggestions as to possible safe-guards which might have been supplied. But while the instructions were general in their terms, they were sufficiently limited by the context The judge said: “ How this ordinary care with which the railroad is chargeable requires them to be ■careful, not only in the running of- their trains, but also in employing competent servants to do work upon its railroad, and to use reasonable and ordinary care in selecting such appliances as are in practical use and of easy application. * * * You must say whether the railroad company has used ordinary and reasonable care in performing this work upon their tracks. * * * Has it neglected the precautions which reasonable and prudent people would have taken to prevent an accident similar to the one upon which you have to pass.”

If the charge was at all amenable to the criticism suggested by Cumming v. The Brooklyn City R. R. Co., 104 N. Y., 669; 5 N. Y. State Rep., 737, all error was cured in the same manner that it was in that case. It appeared from the cross-examination of one of defendant’s witnesses that if the workmen had adopted the very simple expedient of laying boards, which were handy for their use, between the tracks while this work was going on the .accident would not have happened. As to this and other suggested precautions, it was not the province of the judge to ask the jury to say whether this or that omission in itself constituted negligence, but to instruct them, as he did, to determine from all the •evidence, and under the circumstances disclosed, whether defendant had been negligent. Buck v. Man. Ry. Co., 6 N. Y. Supp., 524; 25 N. Y. State Rep., 590.

Hor do we think it was error to admit evidence of the amount of the physicians’ bills which plaintiff had paid, without proof of the value of the services. This is part of the expense to which he has been put by reason of the accident.

In Gumb v. Twenty-third Street R. Co., 114 N. Y., 411; 23 N. Y. State Rep., 748, the plaintiff gave evidence of a physician’s charge, but without giving evidence of payment or of. value, and it was held error. The present case is different, because plaintiff has paid the doctors’ bills. If a bill has not been paid, perhaps it would be well to insist on some proof of value to repel • the suspicion of a collusive charge of a speculative fee. When the bill has actually been paid there is little ground for such suspicion, and plaintiff would always be open to cross-examination as to a fictitious payment

Ho error appearing, the judgment should he affirmed, with costs.

Bookstayer, J., concurs.  