
    JAMES A. GILBERT, Appellant, v. THE THIRD AVENUE RAILWAY COMPANY, Respondent.
    
      A refusal to charge a principle having no application to any possible state of facts proved, is not error—Boarding a ear about to stop is not, as matter of law, either contributory or non-contributory negligence—Experimental evidence, competency of—General objection, matters not to bo urged in support of on appeal.
    
    
      The plaintiff testified that the car had stopped when he attempted to get on; that he had one foot on the platform and one on the steps, when the conductor rang the bell, the car started and he was thrown off. Defendant introduced testimony to the effect that plaintiff was first seen being dragged after the car, and that before that time the car did not stop or slow up.
    Plaintiff requested the court to charge in substance, that it is not negligence for a person to get on a street car while in motion. The court refused so to charge.
    
      Held not error (1st) because the evidence presented no possible state of facts to which the principle requested to be charged could have any application; (2d) because the attempt to get on a streetcar about to stop is not, as matter of law, either contributory or non-contributory negligence. It is for the jury to say whether under the circumstances of the case the act was one of contributory negligence or not.
    The defendant called a witness who had made an experiment to see how a person placed on the step of the car, as the plaintiff in his testimony described himself to have been placed, would fall upon the car being suddenly started, and that witness testified that the falling was in a direction different from that testified to by the plaintiff.
    
      Held, competent evidence for the jury to consider in determining on the conflict of evidence as to the manner in which the accident happened.
    The evidence as to the experiment and its result was received under a general objection.
    
      Held, that on appeal it could not be objected that the questions to the witness called for an opinion, or that the witness was not shown to be an expert, or that it was not shown that the identical circumstances and conditions which existed at the time of the accident, also existed at the time of the experiment.
    Before Sedgwick, Ch. J. and Ikgeaham, J.
    
      Decided February 14, 1887.
    Appeal from judgment in favor of defendant entered on verdict of the jury.
    The facts sufficiently appear in the opinion.
    
      Newland & Van Volkenburgh attorneys, and John Cochrane of counsel for appellant on the questions considered in the opinion, argued:
    
      I. For a person to step upon a horse car that is in moderate motion, is not inconsistent with caution and care, and is not a negligent act. Redfield & Shearman on Negligence, 337, and authorities there cited; Eppendorf v. Brooklyn City and Newtown R. R. Co., 69 N. Y. 195.
    II. This is not a case in which the opinion of an expert was admissible. Ferguson v. Hubbell, 97 N. Y. 507, and authorities cited.
    The matter inquired for, from the witness Robertson, was such as is within the experience of men moving in the ordinary walks of life with a common education derived from customary employment and observation, and admitted no room for the evidence of opinion. It was for the jury to draw their own inference. De Witt v. Barley, 9 N. Y. at page 386, Judge Mason’s Opinion; Pullman v. Corning, 5 Selden, 93; Ferguson v. Hubbell, supra, 7 Hun, 571.
    
      Lauterbach & Spingarn and William N. Cohen of counsel for respondent, on the questions considered in the opinion, argued:
    The evidence of Robertson was competent under both exceptions:
    
      (a.) He was shown to be a proper expert. Nelson v. Ins. Co. per Folger, J., 71 N. Y. 444 ; Jones v. Tucker, 41 N. H. 546.
    The witness had been for eighteen years superintend-ant upon the railroad, and must be presumed to have known the laws of motion and inertia as applied to a car suddenly stopped. Further, he had especial knowledge, having experimented purposely for the trial of this case by starting a car suddenly to see if the jerk would affect a workman standing thereon in the same place and posture as the plaintiff claimed to have stood, and when the car was started in the manner plaintiff described. Whatever may be the qualification of the witness to be an expert, it is well settled that the point cannot now be raised because it was a question of law for the judge at the trial, and is not reviewable upon appeal. This was held in Jones v. Tucker, 41 N. H. 546, and approved by Judge Folger, in 71 N. Y. 444.
    (b.) The testimony of Robertson was relevant m character, and did not relate to facts within the ordinary range of knowledge. People v. Augsbury, 97 N. Y. 501, 506 ; Ferguson v. Hubbell, Id. 507, 513.
    II. The objection to the evidence was fatally defective in that no reasons or grounds were stated, so that it falls within the rule of Levin v. Russell, 45 N. Y. 256 ; Williams v. Sargeant, 46 Id. 481, 483 ; Tooley v. Bacon, 70 Id. 34, 37 ; Quimby v. Strauss, 90 Id. 664.
    III. The exception to the refusal to charge cannot be sustained.
    There is no evidence in the case to the effect that the car slowed up, for the plaintiff swore that the car had stopped completely. And the defendant’s witnesses denied that it had slowed up at all.
   By the Court.—Ingraham, J.

Plaintiff presents two rulings of the trial court upon which he asks that the judgment be reversed.

The first to be considered is the refusal to charge in substance that it is not negligence for a person to get on a street car while in motion. The court based its refusal to charge as requested on the ground that there was no proof to justify the jury in finding that the car slowed up for the plaintiff to get on ; the court saying, “ It is not worth while, gentlemen, that I should instruct you under what circumstances some other plaintiff in some other case might make an attempt to board a car. before it has fully stopped.”

The plaintiff on the trial testified that the car stopped when he attempted to get on; that he had one foot on the platform and one foot on the step, when the conductor rang the bell, the car started, and he was thrown off.

From his story there was no evidence that the car had slowed up, and nothing upon which to base such a request. The plaintiff’s testimony was uncorroborated. The defendant called the driver and the conductor of the car and a passenger who helped plaintiff off the car after the accident. From their testimony it would appear that plaintiff was first seen being dragged after the car, and that before that time the car did- not stop or slow up. If this story were true, then there was no evidence to show that defendant was guilty of any negligence, and it did affirmatively appear that plaintiff was guilty of contributory negligence.

The court left it to the jury to say which story they believed, under a charge to which no exception was taken, and the jury having found for the defendant, it must be presumed that they did not believe plaintiff’s testimony.

The court was not requested to leave it to the j ury to say whether under the circumstances of the case, plaintiff was or was not guilty of contributory negligence, but theo plaintiff in substance requested the court to charge that certain acts of the plaintiff were not, as a matter of law, contributory negligence. It cannot be said as a matter of law that a person getting upon a car about to stop is not negligent on his part, but the rule is that such an act is not as a matter of law contributory negligence. It is for the jury to say in each case whether under the circumstances of the case the plaintiff was or was not guilty of contributory negligence.

As was said in Eppendorf v. The B. C. & N. R. R. Co., 69 N. Y. 195, “ The sole question to be determined here so far as relates to plaintiff’s alleged contributory negligence, was the character of the plaintiff’s acts under the circumstances existing at the time.”

What would be contributory negligence under circumstances not proved, could not assist the jury in passing on this question then presented.

The second and more serious question was the-exception to the decision of the court in overruling the objection to the testimony of an experiment made upon the car after the accident. The objection was general. No ground was stated why the testimony should be excluded, and in such a case the decision of the trial judge will be sustained, unless there be some ground which could not have been obviated if it had been specified or unless the evidence in its essential nature is incompetent. Quimby v. Strauss, 90 N. Y. 664. And a general objection is insufficient to make an objection that the answer called for an opinion of the witness, available. Merritt v. Briggs, 57 N. Y. 651.

Under this ruling the evidence will not be held to be erroneously admitted because the witness was not shown to be an expert or because it did not appear that the identical circumstances which surrounded the plaintiff and the identical conditions which influenced him and under which he acted, existed at the time the experiment was made.

The witness was asked as to, and testified to the existence of a fact, viz, what had happened on the car the day before. No opinion was asked, but he was requested to state what he had seen when a person placed upon the step of the car as plaintiff describes himself to have been placed at the time of the accident, and when the car suddenly started.

This evidence was not in its nature incompetent. The plaintiff testified that he stood on the steps and platform of the car, and by a sudden jerk of the car in starting was thrown off. Testimony of competent witnesses to show that a person standing in the same position was thrown in a different direction when the car was suddenly started, would certainly be competent evidence for the jury in determining on the conflict of evidence as to the manner in which the accident happened.

No case is cited by the plaintiff which holds such evidence incompetent, and we do not think that it was error in the court to overrule the objection taken. The weight of evidence was largely in favor of the defendant. The question was fairly submitted to the jury by the charge to which no exception was taken, and we are satisfied that no error was committed that calls for a reversal of the judgment. Judgment should therefore be affirmed with costs.

Sedgwick, Ch. J., concurred.  