
    Maria Miller, Resp’t, v. Ft. Lee Park & Steamboat Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    1. Questions fob jury—Negligence.
    In an action for personal injuries alleged to have been caused by negligence, where the evidence is conflicting upon a material point, the question of defendant’s negligence is for the jury.
    3. Appeal—Harmless ^bror.
    The striking out of competent evidence is not ground for reversing the judgment where testimony to the same general effect is subsequently ad■mttted.
    3. Damages—Future suffering.
    The jury may, upon proper and sufficient evidence, compensate a party for such future pain as they might conclude that she would suffer.
    4. Same.
    The evidence, in this case, was held sufficient to warrant a charge to this effect.
    Appeal by defendant from a judgment in favor of plaintiff.
    
      Taylor & Parker (.Alfred Taylor, of counsel), for app’lt; Charles Steepler (.Alfred Sleekier, of counsel), for resp’t.
   Parker, J.

The judgment under review awards to the plaintiff damages for injuries sustained while the relation of common carrier existed between her and the defendant, by reason of which it was chargeable in law with the duty of taking all reasonable precautions to secure to her free and safe ingress and egress to and from its boat. The defendant maintains a line of steamboats from the foot of Canal street to Ft. Lee, on the New Jersey shore, having intermediate landings at Twenty-second and Thirty-fourth street. On the 28th day of June, plaintiff was a passenger on one of its steamboats called the Pleasant Yalley. When the boat reached the foot of West Thirty-fourth street it was made fast, and a gang plank about thirteen feet long and three feet nine inches wide was used for a passageway between the steamer and a barge, which were separated from each other by about three feet, and from the barge the passengers passed to the dock. The passengers were informed that all who desired to land at this point could do so. In response to .this information, plaintiff, accompanied by her child, whom she had taken by the hand, proceeded with others to cross the gang plank, and when about midway between the steamboat and the barge she fell over, dragging her child with her, resulting in injuries for which the jury have awarded compensation.

The defendant contended upon the trial, as it does upon this appeal, that it was not negligent in failing to provide at this and other intermediate landings a gang plank with a guard rail. Evidence was presented in its behalf explaining why at its terminal landings gang planks with a guard rail were used, while gang planks without were made to answer the same purpose at the intermediate landings. The reason for this difference was stated to be that there was no convenient place on the steamboat where so large a gang plank as it is necessary to have where such guard rails are used could be carried, and, therefore, it was necessary that such gang planks should be left on the docks ; and as the defendant controlled the docks at its terminal landings, it was enabled to make use of them at such landings, and did, but at the intermediate landings it had no such control, and was, therefore, obliged to make use of gang planks without guard or rail. Its further contention was that, in view of the circumstances mentioned, and the additional fact that it had made use of similar gang planks for a period of over twenty years without an accident previous to the one in question, there was no occasion to apprehend that an accident would occur, and unless it could have been reasonably anticipated that injury would result from the use of such a gang plank, there could not be actionable negligence. It is insisted that, applying the rule that a party will not be chargeable with negligence where the accident is of such a nature that the party had no reason to apprehend that it could occur, and the arrangements were of such a character as experience had up to that time shown to be safe and suitable, and sufficient to meet the requirements of his duty, Loftus’ case, 84 N. Y., 455, the defendant’s motion for a nonsuit should have been granted.

It is unnecessary to determine whether this general rule would operate to protect the defendant if plaintiff predicated its liability solely on the use of a gang plank without a guard, for the plaintiff insisted that, as it was dark, the absence of the guard rail made it the special duty of the defendant to provide that the gang plank should be properly lighted, so that the persons in passing off could see where to step, and that it wholly neglected to do so. Plaintiff testified that when she was in the middle of the gang plank it was very dark, and she undertook to catch hold of the guard rail where none was, and fell over. She further said: “ While I was going off of the boat that night, I was not talking to anybody. I did not see the gang plank when I went on it. I just felt. The people were walking off. I did not see any light with the crowd; there'was too much of a crowd. Did not see any light” William Hipperling testified that he took hold of the little boy by the hand when they were going up the gang plank to the barge; that “it was dark at the time; one man with a lantern, but he was back of the crowd. He was not at the place where the passengers were getting off. .He was on the other side of the passengers. * * * There was no guard or rail on the gang plank. There was no light there at the gang plank. The light that the men had back of the passengers was a lantern ; a small one, about a foot high; it did not throw any light out to the gang plank.” Thomas Gr. Kennedy, a police officer, testified that he was present on the dock, as was his duty, to preserve order, and that it was dark at the time the boat landed.

Indeed, the necessity for light is not controverted, defendant’s contention being that it provided necessary and suitable lights on this occasion, so that, if the plaintiff had looked, she would have had no difficulty in seeing where to step. But, while plaintiff’s evidence in regard to .the absence of light was contradicted, a question for a jury was presented, for the story of the plaintiff and her witnesses might be credited, in which event they would be authorized in finding that defendant failed in the discharge of the duty which it owed to its passengers on this occasion. As under the facts proven the question of contributory negligence was one for the jury, the court rightly denied defendant’s motion to dismiss the complaint.

During the trial, a managing director of the defendant testified : “We have never lost a passenger from these planks in carrying a million and one-half of people.” This evidence was stricken out on motion, defendant excepting. This was error, as the defendant had the right to have evidence of this character considered by the jury when determining whether the company had reason to apprehend an accident from the use of a gang plank without guards. But, while the ruling was erroneous, we think it should not lead to a reversal of the judgment, because the wrong was subsequently righted by the admission of evidence having the same general effect, as a brief reference to the record will show. The same witness testified: “ Q. I understand you to say that this same style of gang plank has been in use 'for twenty years ? A. This same style of gang plank has been in use since the boat was built; has been used day and night; we have never lost a passenger from that style of gangplank of a similar type ; we have made a hundred of them, I presume, on that boat, and that is the first case in twenty-two years.” The captain testified : “We have used that same kind of a gang plank on that steamer to my recollection for thirteen years; we have used it ever since I have been there ; it has been used both-day and night, at all times of the year; I never knew of any other passenger falling off.” Henry Hartnétt, who had been in the employ of the company for about twelve years, testified,: “We used the same gang plank that night that we had always before used. * * * Many thousands of passengers passed over that gang plank; no passenger ever fell off during this time before.”

In charging the jury the court said: “You can award her such sum as will compensate her for such suffering and pain as you may conclude she will suffer in the future, resultant directly from the accident” Defendant’s counsel excepted, and made several requests to charge in relation to that subject, which were refused, and exceptions taken ; thus presenting squarely the question whether the evidence authorized the jury to compensate her for ■■such pain as they should determine she would suffer in the future. The accident occurred June 28, 1891, and the action was tried March 10, 1893, or nearly a year and nine months later, at which time plaintiff testified that the pain which she experienced in her side and arm immediately succeeding the injury continues. She testified: “ I experienced the pain in my side and in my arm. Went to bed that night, and was confined to my bed for three days, under Dr. Wimmer’s care. After he called at my house for three days, I went to liis office. Go there yet. Right after the accident went every day, after the three days; the first part of the time twice a week; then once a week after that up to date. llave felt the pain since that time on the side and wrist. Wrist is still swollen. Never had any pain before that in my wrist, but have pain now there all the time. I never had rheumatism before June 28, 1891. Q. Since that time have you been troubled with it ? (Objected to; objection overruled; exception taken.) A. I do, and suffer great pain, especially when we have a change in the weather.’ ”

George Wimmer, a witness, testified: “ I am a physician. Graduate of Columbia College. Have been practicing as such in the city of New York for a number of years. ' I have known the plaintiff since I have been treating her. My examination showed that she liad sustained quite a large bruise, the size of my hand here, on the side of the ribs under the arm. I attempted to have her make the several motions with the arm, to find she was unable to use it, unable to lift the arm in the customary directions. Every attempt to use the arm caused great pain, and by careful examination I determined there was a partial dislocation of the shoulder. My next examination was the first time she called at my house. 1 found that the bruises were disappearing. She was not able to move her arm. In attempting to move it, it caused much pain. A month after I made another examination. I found her unable to move the arm again, but the pain was constant, but not so severe as at the earlier stage. She always had pain whenever the arm was moved. My next ■examination was probably three or four weeks after the second. I found she was able to perform the movements better, although the arm could not be moved to the limit The pain was always there. My next examination was not within six or seven weeks from the third examination. I found she had not improved very much between that and the last examination. I have not examined the arm since. I have prescribed for her a number of times for the pain she suffered. I prescribed for her every time she came to me. I prescribed internal remedies to remove the pain, nervousness and prostration from which she suffered, which caused insomnia. She was unable to sleep. And I tried external remedies to relieve the inflammation. She has been troubled with insomnia since that time, and I have a number of times prescribed for her. I saw her arm this morning. The examination this morning was merely superficial I noticed it was more swollen than it was; larger than the other one. The arm has been larger since the accident. This swelling of the arm is the. result of the injuries she sustained at that time. She is suffering from rheumatism now. I have traced it to the accident. That is all I find to account for her rheumatism that she suffers from at the present time.”

This evidence was sufficient, under the ruling in Kane v. Railroad Co., 132 N. Y., 160; 43 St. Rep., 494; to justify the court in charging the jury that they might compensate her for such future pain as they might conclude she would suffer. The judgment should be affirmed, with costs.

Follett, J., concurs.

Yak Brunt, P. J. I dissent There is no evidence justifying the submission of the question of future damages to the jury. It was simply allowing them to guess.  