
    William Murtaugh, Resp’t, v. The New York Central and Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed October, 1888.)
    
    1. Negligence—Master and servant—Unsafe machinery — Risk of employment.
    One who attempts to operate an emery wheel, where the defects in its-internal construction are not apparent or visible, and are unknown to him, does not assume the risks and perils arising from such defects.
    2. Same—Contributory negligence.
    Where the evidence showed that there were defects in the internal construction of the wheel, and that it was unbalanced, the fact that plaintiff continued to use the wheel after discovering that it was untrue, was merely a circumstance to be submitted to the jury on the question of contributory negligence.
    3. Same—Evidence—Due care — Opinion of witness — Expert testimony.
    Contributory negligence being alleged on the part of plaintiff in running the wheel out of true, a question put to a witness as to whether he would consent to run a wheel, out of balance, a thousand revolutions a minute, was properly excluded. So to a question as to what the witness would say of the prudence of an operator, who, in polishing a bar, should take one hand off the bar, etc., was properly excluded, as calling for the witnesses opinion. It is not error for the court to charge that a witness who has used emery wheels for a number of years, and had built them himself, is qualified to speak as to the construction of the wheel which burst and injured plaintiff.
    4. Same—Instructions to jury—When erroneous.
    The explosion being the joint results of defects in the internal construction of the wheel, and from its being out of true, the defendant being chargeable only for the former of such causes, an instruction that the fact that the defendant is not liable for the latter cause, does not relieve him from liability for the former, is erroneous, where there is no charge that the defendant is not liable unless the accident would not have happenecL but for the defects in the internal construction of the wheel.
    5. Same—Where verdict not excessive.
    A verdict of $6,000 is not excessive, when it appeared that the plaintiff was a married man, with one child, and was receiving $1.60 a day at the time of the accident, and that he lost three fingers, and received injuries to his wrist and arm, suffering great pain after the accident.
    Appeal from a judgment, entered upon a verdict for $6,000, rendered at the Herkimer circuit, and also from an order denying a motion made upon the minutes of the justice before whom the action was tried, for a new trial.
    The action was for injuries caused by the explosion of an emery wheel operated by plaintiff in one of the repair shops of the company. The wheel was used for polishing pieces of metal, and was made in segments or sections, so cut tnat the grain and the joints beween the segments in each layer ran from the circumference to the centre of the wheel There was evidence that the lumber with which the wheel was made was not thoroughly seasoned. Other facts are sufficiently stated in the opinion.
    
      Ashbell Green, for app’lt; E. La Grange Smith and A. M. Mills, for resp’t.
   Hardin, P. J.

Upon the evidence before the jury, it was a question of fact whether the wheel was properly constructed or not. Whether the defendant had discharged its duty, which required of it “to furnish reasonably safe and suitable appliances, such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or defective appliances.” Burke v. Witherbee, 98 N. Y., 565.

We must assume, therefore, that the jury have found defendant was guilty of negligence in providing for the use of the plaintiff an unsafe, defective and insecure emery wheel. The defective construction of the emery wheel was not apparent or visible, or known to the plaintiff; he, therefore, was not chargeable with notice of its internal structure or condition, and that it was improperly built and not in accordance with the most approved plans for construction of such wheels. There was some evidence tending to show that the wheel was untrue or unbalanced in its operation, and that the plaintiff discovered the same and called the attention of his superiors to it, received directions and instructions from them in respect to remedying the same, and some efforts were made to remedy the untrueness, which did not prove wholly successful. Because the plaintiff' continued to use the emery wheel after he • had discovered that it was untrue and unbalanced, the learned counsel for the defendant insists that there can be no recovery in this action.

The learned trial judge stated to the jury that the plaintiff must make out to their satisfaction, viz.: “ That he has been injured by reason of some negligence on the part of the defendant and that no negligence on his part contributed to the result. If both of these are found by you to your satisfaction in this case, then you will come to the -question of damages; if both are not found, then the defendant is entitled to your verdict.” Later on, in dealing with certain requests that were made to him, the learned judge observed, viz.: “I suppose we understand that my view which I presented to the jury is that it is not a bar to this action (to wit, that the wheel was out of true), but is a matter to be by them considered in determining whether or not there was contributory negligence on the part of the plaintiff.”

It must _ be assumed that the jury have found that the plaintiff did not cause the wheel to be untrue, or contribute ■to its unbalanced condition. It must also be assumed that he did not know of the defect in the construction of the wheel, therefore he did not assume the risks and perils to which he was subjected by reason of the defective condition of the wheel. Gibson v. Erie Railway Co., 63. N. Y., 449; Evans v. L. S. & M. S. R. Co., 12 Hun, 291. This case is, therefore, unlike De Forest v. Jewett. It more nearly resembles Plank v. New York Central and Hudson River Railroad Company, 60 N. Y., 607. In the latter case there was no evidence that the deceased “ had actual, present knowledge of the existence-of the ditch” which caused the injuries. (See opinion of Tract, J., in De Forest v. Jewett, 88 N._ Y., 269.) If the plaintiff had known of the defective condition of the wheel, and continued in its use, a different question would have arisen from the one now presented.

We think there is no force in the exception taken to the ruling of the court, “ that the witness had been shown presumptively qualified to speak in respect to the construction ■of the emery wheel in question.” The witness had used them in different factories for seven years. Nor in a similar ruling in respect to the competency of the witness, Baker. The witness had stated that he had been, for a number of years, engaged in the polishing department of Ilion, and that he had wheels there that he had used for twenty years; that he had had charge of the shop and men, and the machinery in it, and that he had polishing wheels built, and built them himself. The witness added, viz.': “The very fact of the grain running to the center, alone, is enough, that makes it no better than cutting off the ends of a log, and making a wheel out of that.” The ruling at folio 174, was not erroneous; the abstract question put to the witness -as to whether he would consent to run a wheel out of balance, a thousand revolutions a minute, or not, was properly excluded.

The question put to the witness as to what he would say as to the prudence and care of the operator of a wheel, polishing a bar three and one-half feet long, and three inches in width, weighing forty pounds, taking one hand off the bar, and leaving it on the wheel, controlled with only one hand,” was excluded, and we think properly. Whether the act embraced in the question was a prudent or careful one, was a question of fact for the jury to determine, after a carefully detailed statement of all the facts relating thereto. The question proposed to substitute the opinion of the witness on the question of “ prudence and care.” We think it was not error, to exercise the discretion in cross-examination, in respect to whether the witness made some other wheel, on some other occasion, to do small jobs on. It did not relate to the issue involved here.

It is insisted that the damages awarded by the jury are excessive. It appears in the evidence that Drs. Lehr and Skiff treated the plaintiff; that he lost three fingers, and that his hand did not get well until some eight months thereafter; and that it became necessary for Dr. Hosford to probe it, and take out the bone; and that some of the bone came out from the wrist, and that the left wrist is stiff now. It. also appeared that the plaintiff was receiving one dollar and fifty cents a day at that time; that he was a married man with one child. It appeared that the plaintiff suffered a great deal of pain directly after the accident, and that he was nervous, excitable, and sometimes delirious. The injured arm and wrist were exhibited to the jury. In such cases “ the bodily pain and suffering is part and parcel of the actual injury, for which the injured party is as much entitled to compensation in damages as for loss of time or the outlay of money.” Morse v. Auburn and Syracuse R. R. Co., 10 Barb., 621.

In Caldwell v. Murphy, 1 Duer, 233, it was held that “in an action for an injury to the person, the circumstances, condition in life, and pursuits of the plaintiff, may properly be given in evidence, in order to enable the jury to determine the extent of his actual damages (and also held tha/fc), an inquiry made into the probable consequences of the injury, as transitory or permanent, is eminently proper. • S. C., affirmed 11 N. Y., 416. In Curtis v. Rochester and Syracuse Railway Company, 18 N. Y., 534, it was held, viz.: That “damages recoverable for bodily pain and suffering, by a person injured by the negligence of another, are not limited to that incurred before the trial, but extend to such future suffering as the evidence renders it reasonably certain must necessarily result from the injury.” We see no occasion to declare that the jury was moved by passion, prejudice or corruption, in determining the amount of the verdict upon the evidence and exhibits _ before them. Whether the plaintiff was guilty of contributory negligence on the occasion that he received the injuries, or not, was a proper question for the jury under the instructions delivered to them by the learned trial judge.

But a more serious question arises from the following portion of the judge’s charge: “That if the accident was the joint result of the internal construction, and of its being out of true, the joint result of those two causes, then the fact that the company might not, or would not, be responsible for it because of its being out of true would not relieve the company from the liability with reference to the other. That is to say, if a result happens jointly from two causes, ■and the defendant is chargeable with one of those causes, then, so far as that point would be concerned, so far the defendant would be liable, unless the plaintiff himself was chargeable with the other cause. If a result is produced by the joint negligence of the defendant and á third party outside of a case, then that, under the law, is deemed negligence on the part of the defendant, he being then, in such case, one of the joint actors. Then if the plaintiff is not negligent, so far the cause of action will be maintained; so that in this case, if this result, this bursting of the wheel, was produced solely by the internal construction of the wheel, then you have a right to say, if the wheel was not properly built, that the defendant was negligent; so you would have a right to say that the defendant was negligent, provided it was the joint result of the internal construction and of its being out of true, provided, however, that the plaintiff himself was not responsible for its being ■out of true; so that if, under either of those views, you come to the conclusion that this defendant was negligent, then you will come to the other proposition, and the real basis of this action, as to whether or not the plaintiff himself was careless, whether he, by any fault of his own, contributed to the result.”

By this charge the learned judge failed to instruct the jury that the defendant would not be liable for the negligence, in what he termed the internal construction of the wheel, unless the accident would not have occurred but for such negligence. The effect of the charge was to lead the jury to understand that if the defendant was negligent in constructing the wheel, it was liable, although the accident might have occurred by reason of its being out of true, and independent of such negligent construction. The vice of this charge rests in the fact that the jury were instructed that the defendant was liable to the plaintiff for an act of negligence, which, concurring with another act, for which it was not liable, produced the plaintiff’s injury, although the accident might have occurred without the negligence for which defendant was hable.

In the case of Ring v. City of Cohoes (77 N. Y., 83, 89, 90) it was held, where, without any fault on the part of the ■driver, his horse became frightened and unmanageable and ran away, and this, with a culpable defect in the highway, produced the injury, the municipality is liable, provided the injury would not have been sustained but for such defect. In delivering the opinion of the court in that case, Earl, J., says: “When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes, but it cannot be attributed to a cause unless, without its operation, the accident would not have happened.” The same doctrine was reasserted in Ehrgott v. Mayor, etc., of the City of New York (96 N. Y., 283).

In Cone v. Delaware, Lackawanna and Western Railway Company (81 N. Y., 206), it was held that where a master furnished defective machinery for use in the prosecution of his business, he is not excused, by the negligence of a servant in using the machinery, from liability to a co-servant for an injury which would not have happened had the machinery been suitable for the use to which it was applied.

In Searles v. Manhattan Railway Company (101 N. Y., 661), the court says: “Where the fact is that the damages claimed in an action were occasioned by two causes, for one of which the defendant is responsible, and for the other of which he is not responsible, the plaintiff must fail if his •evidence does not show that the damage was produced by the former cause.”

In Taylor v. City of Yonkers (105 N. Y., 203), the doctrine of the foregoing cases was again held, and the foregoing principles again stated.

We are of the opinion that the defendant’s exception to this portion of the charge was well taken, and that for this error the judgment and order must be reversed and a new trial granted.

Follett and Martin, JJ., concur.  