
    Elizabeth Horn, Respondent, v. The New Jersey Steamboat Company, Appellant.
    
      Negligence —■ an upper berth falling, at night, upon a passenger asleep in the lower berth — res-ipso loquitur — duty of carrier as to berths—form of .a hypothetical question — waiver of an objection to its form.
    
    The fact that an upper berth occupied by a passenger on a steamboat falls, from some unexplained cause, upon the berth beneath it, injuring a.passenger sleeping in the lower berth, is prima facie evidence of negligence on the part of the steamboat company.
    Where, in an action brought by the passenger thus injured against the steamboat company, it appears that although such an accident is rare, it has occurred several times on the same boat, and the defendant fails to account for the fall ■of the berth otherwise than by a suggestion that the person occupying it-might. have sprung its sides so far apart by pressing her knees against the side of the boat as to cause the slats to slip out of the sockets and fall, the company is not thereby excused, as the berth should have been made sufficiently strong to . resist any natural or usual movements of its occupant.
    Van Brunt, P. J., dissented.
    A hypothetical question, based entirely upon facts which have been proved upon the trial of an action and upon inferences which the jury is entitled to draw therefrom, is competent, although it does not contain all the facts proved.
    Where an untenable objection is taken to the form of a question, and a tenable objection is not, the court is justified in assuming that the latter is waived.
    Appeal by the defendant, The New Jersey Steamboat Company, ■from a judgment of the Supreme Court in favor , of the plaintiff, ■entered in the office of the clerk of the county of New York on the 10th day of March, 1897, upon the verdict of a jury, and also from •so much of an order entered in said clerk’s office oh the 10th day of March, 1897, as denies the defendant’s motion for a new trial made upon the minutes.
    
      W. P. Prentice, for the appellant.
    
      Nelson Smith, for the respondent.
   Rumsey, J.:

On the evening of the 1st day of December, 1891, the plaintiff was a passenger on the defendant’s steamboat Drew on a trip' from Albany to New York. During the night, while lying in a berth which had been assigned to her, the berth just above her, occupied by another woman, fell upon her, and she claims that she received injuries in consequence thereof. On the 1st of March, 1894, this action was brought to recover damages for those in juries. At that time, as the plaintiff claims, her injuries had become very serious. On the trial which took place in 1897, the plaintiff recovered a verdict for $2,500. A motion for a new trial was made, which was denied and judgment was entered upon the verdict, from which, as well as from an order' denying a new trial, the defendant has appealed.

The first question presented by the appeal is whether upon the whole case there was evidence of the defendant’s negligence to go to the jury. The defendant was a common carrier of passengers between Albany and New York. As such, it was its duty to use the utmost care to protect its passengers from injury while they were aboard its steamers. Failure to exercise such care is negligence. The plaintiff applied for a berth, and one was assigned to her to which she retired. All that she knows about the occurrence is, that at a very early hour in the morning the berth above fell upon her, and that she was injured by it. It appears in evidence that such an accident is one that very rarely happens, but that it has been known to occur on the Drew several times. Ordinarily, if due care is exercised in keeping berths in pz-oper condition, no such accident could be expected. When it does take place, the fact of the accidezit itself establishes that soznething out of the coznznon order of events has happened, either because of a defect in the berth or its appurtenances, or because of some outside intez'ference with the berth which caused it to fall. Ozie of those two things must have caused the accident. The condition of the berth aizd the manner of its construction, and whether that construction is a proper one azid safe for the .purposes for which it was intended,' are mottez-s peculiarly within the knowledge of the defendant, and not at all within Ihe knowledge of the plaintiff. In the nature of things all that the plaintiff could know was that, upozi asking for accommodations, she was assigned to this place, which it was the duty of the steamboat company to keep in a proper condition for liei’, and that while she wras thus occupying it, it fell and the accident happened to her. When she showed that, she had shown- enough prima facie to znake it appear that there was something wzxmg about the berth, and thus to establish that the accident was caused by the negligence of the defendant. (Edgerton v. The N. Y. & H. R. R. Co., 39 N. Y. 227, 229; Miller v. O. S. S. Co., 118 id. 199.) It then became obligatory upon the defendant to give evidence as to the manner of construction of the berth and its condition at the time of the accident, and upon all that evidence .the question arose whether the defendant had performed its. duty towards the ¡fiaintiff by furnishing her a safe place in which to sleep. Whether this question is to be determined as one of fact or of law depends, of course, upon the nature of the evidence jiroduced. In this case there was evidence on the part of the defendant showing that the berth was properly constructed that there was no defect in it, and that berths thus constructed were very rarely known to fall. But it was also made to appear by the evidence of the defendant that berths on its boats' had fallen several times. The evidence on the part of the defendant as to the condition of .this berth and its situation after it fell differed considerably from the testimony of the plaintiff in regard to the same matters. The plaintiff testified that the whole of the berth fell upon her, with the person who was occupying it, and that all four corners of it were out of the sockets, so that the whole berth lay upon her when it fell. The evidence of the defendant tended to - contradict this and to show that the only portion of the berth which fell was one corner which, by some means, had slipped out of its socket; but whether this was the true account of the extent to which the berth fell was a question for the jury. The testimony even of the defendant’s witnesses left some doubt upon that point. But whether the whole of the berth fell, or only one corner of it slipped out of its socket and fell, was of considerable importance as bearing upon the question whether the berth was or was not properly constructed. It was the duty of the company to furnish such a berth so arranged that one who was in it and above the plaintiff could not, by any natural motion or usual movement of a sleeping person, or of one getting in or out of her berth, cause it to fall. In this case they were only relieved from liability if the fall of the berth was caused by some unusual motion or action of the person who was in it. Whether it was so caused was not made to appear. The only evidence upon that point was a suggestion of one of the witnesses that the fall of the berth might have been caused by the pressing of the knees of the person in it against the side of the boat, and thus springing the two sides of the berth so far apart that the slats slipped out of the sockets and fell. But even if that hypothesis be adopted, it did not relieve tlie defendant. Such a pressing of the knees could not be said' to be unforeseen or unusual, and the berth should have been made sufficiently strong to have resisted it; and it was a question for the jury whether it was made sufficiently strong to answer the ordinary purposes. Upon that question they were authorized to take into consideration the fact that it did fall and what was said about it by the defendant’s witnesses, and to come to a conclusion from all the testimony whether the berth was properly constructed and properly kept in repair. It must be remembered that the defendant’s witnesses were interested as the plaintiff was, although, perhaps, not to an equal extent. It was for the jury to say what weight they would give to that testimony, and also how far, if at all, they were to consider the testimony, in view of what must be said, upon an examination of the case, to be some manifest contradictions and inconsistencies between the testimony of the several witnesses of the defendant, considered entirely apart from that of the plaintiff. ■ Upon the whole case, while the evidence was slight, yet we think there was sufficient to enable the jury to conclude that the defendant was negligent and thus warrant a verdict for the plaintiff.

It is objected that the injuries to the plaintiff were not sufficiently proved, and the specification under that objection is that while the plaintiff herself testified to the serious condition in which she was, and the immediate results of the injury which she claimed caused that condition, the connection between the injury and the plaintiff’s condition was only made by an hypothetical question which the defendant says was inconsistent and erroneously allowed. The objection to the question was specific and only to the form. As stated by the counsel for defendant, it was to the form * * * as being supposed or alleged to be founded upon facts, which facts have not appeared in the evidence;. * * * if it be an hypothesis it is not upon material and relevant facts to this inquiry; * * * that, there is no evidence * * * before the court or upon which this witness is competent to give opinion upon which .he can found an answer, and, * * * as indefinite, because -other necessary facts are not stated with it,” specifying those facts. A consideration of this objection shows that it is equivalent simply to claiming that the hypothetical question was faulty, either in being based .upon facts that did not appear or as omitting facts which had been made to appear by the testimony. Neither of these objections 'was well, founded. In" framing hypothetical questions to be put to a jury counsel are required to confine themselves to facts which are proven or which the jury might find, or any facts which might be assumed from the evidence already in the case and which are pertinent to the theory they are attempting to uphold: (Dilleber v. Home Life Ins. Co., 87 N. Y. 79.) But counsel are not called upon, in- framing an hypothetical question, to present all the facts which have been made to appear. If they keep within the facts and "fair inferences from them they have done all that can be required, and the hypothetical question thus framed is not objectionable. If the •question omits facts which, are material and pertinent to the inquiry that is a subject of comment, to the jury, and so far as those facts are -omitted the weight to be given to the testimony elicited by the question is impaired; but that does not at all affect its competency, however much it may affect the conclusions the jury are to draw from the answer. An examination of the question which was objected to will .-show that every fact assumed in the question might have been found by the jury from the evidence which had already been made to appear. The objection taken was properly overruled. No other objection was made to the form of the question, and indeed none stated, •■except that the witness was not competent to answer, which was •clearly unfounded. In'view of the fact that the only objection taken to the form was the one considered, we are not called upon to examine the question in any other respect. If there is a well-founded ■objection to the form, and that objection is not taken, but the objection which is taken is not well founded, the court does not err in •overruling the specific objection, and assuming that any other which .might have been taken, but which was not, was waived.

A.careful examination of the testimony in this case has led us. to •conclude that the verdict was not against the evidence. As we have •already seen, there was sufficient to warrant the finding of negligence. There is evidence to support the finding that the plaintiff received injuries, and that those injuries caused the lamentable condition to which she was subsequently reduced, and while.in some respects the evidence is unsatisfactory, yet we cannot say that it was not such as the jury should have received and acted upon.

There was great delay in bringing the action, but the plaintiff explains that by saying that she was advised to defer doing so until it could be seen just how far her injuries would prove to be serious; and that explanation was a plausible one, and whether it could be accepted or not was clearly a question for the jury. If the^ believed that the injuries to the plaintiff were as serious as her evidence made. it appear that they were, it is quite clear that the verdict was' not excessive.

For all these ■ reasons we conclude that the judgment and order were correct and should be affirmed, with costs to the respondent.

Barrett, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J.

(dissenting):

I dissent from the opinion of the court in this case. I do not think that the rule laid down by the opinion in regard to the hotel appliances of the defendant’s steamer is correct. No more care, is required in respect to those appliances than is required of a hotel keeper in taking care of his guests upon land. In that respect the relation of the traveler to the carrier is precisely the same as that of the guest of an inn to the innkeeper. In addition, however, to board and lodging, the carrier affords the passenger transportation, and in respect to the appliances for transportation, the carrier is bound to exercise the utmost care and diligence.

Judgment and order affirmed, with costs.  