
    Patrick Purcell, Respondent, v. The Duncan Company, Appellant.
    
      Evidence—proof in a negligence case that the injured, plaintiff had, children, when, improper — loss of virility occasioned by the injury.
    
    Ia an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, evidence as to whether or not the plaintiff has any children is irrelevant and immaterial. Evidence that the plaintiff had two children at the time of his injury has a ten- .. dency to excite the sympathies of the jury and to influence the amount of 1 their verdict, and its admission, therefore, must be deemed to be a harmful ■ error requiring the reversal of a judgment entered upon a verdict in favor of the plaintiff for §15,000.
    When the admission of such evidence cannot be sustained upon the theory that it was material in support of a claim of a loss of virility, advanced by the plaintiff as an element of his damages, considered.
    Appeal by the defendant, The Duncan Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 5th day of December, 1904, upon the verdict of a jury for $15,000, and also from, an order entered in said clerk’s office on the 17th day of ¡November, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    The defendant was engaged in the manufacture of paper from wood pulp and the plaintiff was employed by it as a carpenter, and, being at work by the month at such matters as from time to time' became necessary to be performed, was set to work to relay slate-upon a certain roof on one of its buildings. This roof was over the room in which the wood was treated with acids and turned into pulp for the manufacture of paper, and on this account the rafters and roof boards, which were .exposed to view from the ground up, had become very much decayed, and, as a matter of fact, in some places were unable to hold up the man who walked across them. The plaintiff, in the course of jierforming such work, walked across a portion of the roof, which broke through and he fell to the ground beneath and was severely injured. He seeks to recover upon the theory that the defendant neither furnished him a safe place in which to do the work, nor gave him notice that it was not safe. The defendant replies that plaintiff had for several years worked in and about the premises and was well acquainted with the operation of the acids and with the condition of the roof in question ; that no fact was known, or could have been known to- the defendant that was not as well known and as apparent to the plaintiff, and that if the plaintiff had used reasonable care in working upon-the roof he would not have broken through nor-suffered any injury whatever. The defendant also claims that the danger arising' from a decayed condition of the roof was one of the risks necessarily assumed by the plaintiff in the operation of relaying the slate.
    The jury found a verdict for the plaintiff for $15,000, and from the judgment entered thereon, and from an order denying a motion for a new trial on the minutes, this appeal is taken.,
    
      Edward W. Douglass and Lewis E. Carr, for the appellant.
    
      John Scanlon and Edgar T. Brackett, for the respondent.,
   Parker, P. J.:

If it be conceded that the evidence in this case was properly submitted to the jury, with correct instructions as to the law of the case, and that such jury reached a correct conclusion as to the facts,, this judgment must be reversed for the reason that immaterial evidence was improperly received by the trial judge under the defendant’s objection.

The plaintiff being on the stand as a witness in his own behalf, testified that he was thirty-seven years of age and was married and had resided in Mechanieville six or seven years. He was then asked : “ What family have you ? ” This question was objected to by the defendant as immaterial. The objection was overruled and the defendant excepted. The plaintiff then answered: Two children. I had two children at the time of my injury. At that time I wag living on Saratoga Avenue, keeping house.”

There was no issue presented in this case to which this evidence was at all material. The action being to recover for his personal injuries, the question as to the size of the family or the number of children he had to support had no bearing whatever upon the question as to what was an adequate compensation for the injuries he had received. The elements which combine to determine that question are the same whether the plaintiff be married or single, rich or poor. (Shaw v. Boston & Worcester R. R. Corporation, 8 Gray, 45; 2 Wood Railroads [2d ed.], 1416; Abb. Tr. Ev. [2d ed.] 756, 757; Alberti v. N. Y., L. E. & W. R. R. Co., 118 N. Y, 77, 82.)

Such evidence being so clearly immaterial, it was a plain error to receive it; and the serious question is, was it a harmful error? Doubtless the trial judge gave it very little consideration, because it seemed at the time so utterly irrelevant as to be altogether harmless. But an examination of the authorities shows that usually upon appeal such evidence has not been so considered. It is unnecessary to discuss what was the purpose of offering such irrelevant testimony, or how much effect it actually had upon the amount which the jury have awarded to the plaintiff as compensation for his injuries. It clearly had a tendency to awaken their sympathies, and thus influence their judgment in the direction of a greater award, and so within the well-settled rule enunciated in Lipp v. Otis Brothers & Co. (161 N. Y. 559) it must be deemed a harmful error, (See, also, Smith v. Lehigh Valley R. R. Co., 177 N. Y. 379, 384.)

The plaintiff contends that this evidence was not immaterial for the reason that a part of the injury complained of was the loss by plaintiff of his “ virile power ” and the fact that he had children before the accident went to- prove that at such time he could beget them.

In the first place no such special injury or loss is claimed or set up in the complaint. It was not a material issue, then presented in the action,, whether one of the elements of plaintiff’s injury was a loss of his power to beget children.'

But if such a question had been presented, the plaintiff was not asked whether lie had ever begotten any children. The inquiry was as to the extent of his family and the answer showed that he then had two minor children for whom he was then providing. Evidently the question was not directed to the proof of any fact affecting his virile power,” but was intended to show the extent of the burdens which he was called upon to support, and thus put before the jury an element bearing upon the question of his compensation which they had no right to consider. The question is practically the same in form, as the one in Pennsylvania Co. v. Roy (102 U. S. 451), which was condemned as being both immaterial and harmful, and held to require a reversal of the judgment. This case is cited with approval in Lipp v. Otis Brothers & Co. (supra), and is a controlling authority in this case. • '

For this reason the judgment must be reversed.

All concurred; Houghton, J., not sitting.

Smith, J. (concurring):

I am unwilling to agree that in all cases where the plaintiff has recovered a verdict in an action for negligence an error in allowing the plaintiff to swear that he has two children is reversible error. Where a plaintiff in such a cáse, however, would support a judgment upon a verdict for $15,000 the defendant has a.right to insist upon a stricter rule in scrutinizing any evidence improperly admitted which might tend to enhance damages.

I am not entirely satisfied either with the course which this trial took at the Trial Term or with the questions submitted to the jury. If it had not been for the deterioration in the roof timbers caused by the acid-fumes such ah accident as here happened would seem to be chargeable as much to the negligence of the plaintiff as of the defendant. The plaintiff had worked as a carpenter for the defendant for four years doing repair work in the different buildings which constituted defendant’s plant. Any weakness of the timbers of that plant from ordinary causes might have been ascertained by plaintiff and should have been ascertained by him before going upon a roof even though the specific direction then given was simply to slatj the roof. It would seem to me difficult to sustain a verdict in this case except upon the theory that the defendant was negligent in not ascertaining the effect of the acid fumes upon the timbers of the mill, and in not informing the plaintiff of such effect.. If a jury should find that such was the duty of the defendant in the exercise of reasonable care for its employees it should then be directed to find whether the plaintiff with such knowledge as he had of the effect of acids upon the wodd should not in the exercise of reasonable care have acquired knowledge of the effect of these acid fumes independent of any information from the defendant. If both of these questions should be found- in favor of the plaintiff, a verdict in' his behalf might have a legal foundation upon which to rest. The verdict here found would be more satisfactory if founded upon a charge specifying in just what particular the defendant might-legally be charged with dereliction.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  