
    Freeman Murray, Adm’r, Resp’t, v. Luke Usher et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1887.)
    
    Negligence—Damages —Evidence—What may be pboved in mitigation op.
    On the trial of an action to recover damages for the death of a person, alleged to have heen caused by the negligence of the defendant therein, it is not competent to show, in mitigation of damages, that the defendant had paid money, or taken care of the decedent, between the time of the injury and his death. Littlewood v. Mayor, etc., 89 N. Y., 24, distinguished.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury at a circuit of said court.
    
      John A. Vance, for app’lts; N. L. Robinson, for resp’t.
   Learned, P. J.

—This is an action to recover damages for the death of plaintiff intestate alleged to have been caused by defendants’ negligence.

The defendants, on the trial, asked the question: Was plaintiff intestate taken care of between the injury and his death by these defendants? This was objected to both as not pleaded and as incompetent. The court said that the former objection could be obviated by an amendment and he sustained the objection on other grounds. We must therefore, in fairness consider the evidence offered upon its merits. The defendants insist that it was admissible to mitigate the damages, as they had followed up this question by offering to show that defendants had paid $2,000 in the care of the intestate during the timo above mentioned and in giving him proper interment.

The defendants rely on the case of Littlewood v. Mayor, etc. (89 N. Y., 24). Whatever may have been said in the opinion in that case, the only thing decided was that where the person injured brought suit and recovered in his lifetime, his personal representatives could not maintain an action under the statute. And the argument of the court is that, since the injured party had recovered his damages, the defendant would not thereafter “have been liable if death had ensued.” Nor would the neglect have thereafter “entitled the party injured to maintain an action” if death had not ensued.

The argument and the decision seem to rest upon the fact that, at the time of death, the injured party had no right of action and the defendant was under no liability.

_ Now, it may be argued that by analogy, any compensation made by the defendant during the lifetime of the injured party should be considered in mitigation on the trial of the action by the personal representatives. And this view is favored by a remark at the foot of page 32. It will be seen, however, that even that remark is limited to a settlement of the damages without suit.

One consideration which seems sufficient to show that this evidence was properly excluded is this: The injured party during his lifetime could recover for bodily suffering. His personal representatives after his death cannot. If, therefore, in this action the defendants could show, in mitigation, the payment of money, it would be but just that the personal representatives should be permitted to show the bodily suffering of the deceased. Because the money might have been paid in consideration of these sufferings. This would result then in bringing into an action of this kind an element of damages entirely improper. Notwithstanding, therefore, the alleged analogy between the giving of the evidence, which was excluded, and the proving a settlement or action by the deceased in bar, we are of the opinion that the case above cited does not apply, and that no error was committed in this respect.

This action was brought by an employee against two employers, and Lewis, a co-employee. The defendants urge that Lewis was liable only by his own personal negligence. He was the superintendent and was charged with the duty of looking after the platform which fell, and by the fall of which the plaintiff’s intestate, Blanchard, was injured. If he neglected his duty and thereby injury came to Blanchard, we suppose he was liable. In the charge of the court defendants were spoken of generally as bound to furnish Blanchard a safe and proper place in which to work, etc. No request was made by the counsel of Lewis to qualify this charge in respect to him. Possibly if such request had been made it would have been the duty of the court to make some qualification. For it would hardly be said that Lewis, the superintendent, was bound to furnish a safe place to work. But no exception was taken and no request made to distinguish the special duty of Lewis from the general duty of the employers. And though a motion for non-suit was made on behalf of each, yet even then no special position was taken in regard to Lewis and no distinction pointed out as to the nature of his liability.

Both at the close of the plaintiff’s case and at the end of the evidence, defendants moved for a non-suit. They now urge that there was no evidence to justify the submission of the case to the jury. There is no proof, as they claim, that any of the defendants had any knowledge of any defect in the structure.

On this point the appellants say, that within two hours before the fall the structure had sustained a weight double that under which it went down. But this is not conclusive. A structure always stands till it falls. Whenever a railroad train breaks through a bridge some other train had passed over safely not long before. Alluding to the old proverb, “ it is the last straw that breaks the camel’s back,” a bridge or other structure which is gradually decaying finally reaches a condition when it falls. Of course if the fall is occasioned by some sudden cause and not by gradual decay, the liability of the defendants would be very different. And the court properly charged that if the structure became unsafe at a time so near the accident that the defendants had not reasonable time and opportunity to discover the defect, they are not liable.

The court further charged that if the becoming unsafe within one hour was the direct effect of age or of any other defect in the structure which could have been ascertained by competent examination defendants are liable. The defendants claim that this was erroneous because the extraordinary high water was ignored. But taking this part of the charge in connection with the rest, there is no doubt that the court plainly stated the law and that the jury could not have found the defendants hable except for a neglect to use reasonable care in keeping the structure safe.

There was evidence respecting the length of time that the structure had been erected and the length of time that hemlock posts such as those, which supported the platform will last. Now those posts stood where the water was sometimes six feet deep and there was an accumulation of rubbish around the bottom of the posts. There was evidence tending to show that the platform for a year or two before the accident, had settled, and that it had been necessary to block it up; and, also, that it shook when loads and teams went over it.

It cannot be necessary to go over the evidence in detail. It seems to us that there was evidence from which the jury might have inferred not only that the structure had been growing dangerous for some time before the accident; but also, that this dangerous condition could have been seen by any observer; and that the defendants failed to make such examination of the condition of the structure as their duty required. And this is especially true when the nature and uses of the structure are considered and the liability of the posts which supported it to decay at the bottom.

The judgment and order should be affirmed, with costs.

Williams, J., concurs.  