
    Walt W. Wilson, as Guardian ad Litem of Alpha C. Pontlitz, an Infant, Respondent, v. American Bridge Company, Appellant.
    
      Negligence — injury to a boy playing on a railroad embankment, from steam ejected. from a pipe extended through the wall of an adjacent manufactwing building — duty of the manufacturing corporation to examine the course of the projected steam — testimony of a physician as to the permanence of the injury.
    
    In an action brought to recover damages for personal injuries, it appeared that the defendant was a manufacturing corporation, whose plant was located contiguous to the land of a railroad company; that upon the railroad company’s premises there was an embankment upon which a switch track had been built; that no regular highway had been laid out upon the embankment, but that on the embankment adjoining the switch track was a roadway fifteen or twenty feet wide, upon which teams hauling freight to the railroad were driven; that outside the roadway and on the crest of the embankment was a footpath, three or four feet in width, which was used extensively by residents of the neighborhood and employees of the defendant.
    The distance from the embankment to the defendant’s building, measured along the slope of the embankment, was twelve feet. Projecting through the wall of the building about twelve inches, and about one and a third feet below the footpath, was an exhaust pipe, two or three inches in diameter, from which steam and water were violently ejected whenever a. steam hammer installed in the defendant’s plant was operated. There vijas no fence separating the embankment from the footpath, and whatever was forcibly emitted from the pipe struck the railroad embankment.
    On the day of the accident, the plaintiff, a boy nine years of age, while playing on the slope of the embankment outside of the footpath, when on his way to his home, was scalded by a quantity of steam and water expelled from the pipe. The plaintiff had never seen the pipe and had no notice that he was in any peril and was playing in a locality frequented by him.
    
      Held, that a verdict in favor of the plaintiff should be sustained;
    That the court properly charged that the position of the plaintiff at the time he was injured was immaterial provided he was upon the premises of the railroad company;
    That it was unimportant, upon the question of the defendant’s liability, whether the plaintiff was a trespasser upon ,the lands of the railroad company or whether the defendant had obtained permission from the railroad company to discharge hot water upon the embankment, and that the case should be considered as though each party’s use of the premises was rightful or by the acquiescence of the railroad company;
    That the defendant’s servants were guilty of affirmative negligence in failing to examine the course of the projected stream and to remove the peril by deflecting the pipe downward or protecting it with a hood.
    
      A physician who attended the plaintiff was sworn on the trial, and described the extent of his injury, and among other things, stated that ulcerations of the wound were occurring at the time of the trial and that the scar tissue was liable to break down at any time. He was then asked, “ Can you with reasonable certainty determine how long that condition of the breaking down of this tissue will last?” and replied, “It may continue for years. Any irritation of the clothes may break it down for years to come.”
    Such witness also testified that a part of the muscles on one side of the plaintiff's body had been burned away and that such injury would have a tendency to draw the body to that side, and that he thought such condition would he permanent. He was then asked; “You can say with a reasonable degree of certainty that that condition will be permanent? ” and replied; “ I think that side will always be drawn, the body will always he drawn to the injured side.” Held, that it was not error for the court to refuse to strike out such testimony. Adams, P. J., and Hiscock, J., dissented.
    Appeal by the defendant, the American Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of February, 1902, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 5th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      Louis L. Babcock, for the appellant.
    
      Eugene M. Bartlett and Arthur W. Becker, for the respondent.
   Spring, J.:

The plaintiff was seriously injured on the 5th day of June, 1901, by hot water and steam discharged from a pipe which projected through the foundation wall of the defendant’s building, and he has commenced this action charging the defendant with negligence. The defendant is a manufacturing corporation and its plant lies contiguous to the premises of the Pennsylvania Railroad Company in the city of Buffalo. Across these lands a switch track extends, and patrons of the road have been in the habit of going upon the lands next to the track for the purpose of loading freight. There was no regular highway, but teams were driven in from Bailey avenue onto these premises, and there was a space from fifteen to twenty feet wide adjoining the railroad track upon which the teams traveled. There was no cross street from Lester street to Bailey avenue, and people were wont to pass along a path next to this roadway. The footpath was worn smooth and bare by extensive traveling- and was tlii-ee or four feet in width. There was a grocery and meat shop on Bailey avenue patronized extensively by people residing on Lester street, and the usual course taken by them to and ■from this store was along this beaten path, and many of the employees of the defendant also used it. Yet this user may not be said to be with the consent of the railroad company for occasionally its employees sought' to prevent travel over its premises,- but evidently to no purpose, of else they were lax or acquiescent for the travel continued to be too frequent for the user not to be known to the servants of the railroad company. The tracks of the railroad company, the roadway and pathway, were substantially on a level and "were elevated above the surrounding country and consequently there was an embankment of earth sloping southerly toward the premises and the building of the defendant. The pipe from which the "steam and water were ejected projected through the wall óf the defendant’s building about twenty inches, and it was two or three inches in diameter and it was about four feet above some tiling on the defendant’s premises. The south rail of the nearest railroad track was approximately thirty-eight feet from the- wall of ■ the defendant and three and six-tenths feet above the pipe, while the brink of the embankment, along which the footpath was worn, was one and thirty-five-hundredths feet above the extended line of this pipe, and from this path down the slope to the tiling was about twelve feet. The boundary line of the defendant extended less than ten feet northerly of its building, and whatever was forcibly emitted from the pipe struck the embankment on the lands of the railroad company.

. In the operation of its plant the defendant’s employees used a large hammer operated by steam and whenever its use was commenced for a short time thereafter steam and water were forced violently through this exhaust pipe. The hammer struck from. 200 .to 250 blows a minute and the expulsion of the steam and water through the pipe was "with great force. The use of this hammer was only occasional and at times several days elapsed without anything being discharged through the pipe. -

On the oth of June, 1901, the plaintiff, who was a little boy, nine years of age, was playing with a companion along this hank going toward his home on Lester street when the water and steam were expelled from this pipe striking him on the left hip and leg .and scalding him so that the flesh came off and injured him permanently. I do not regard it as very significant in the solution of this case whether or not the plaintiff was a trespasser upon the lands of the railroad company. The use of the pathway was extensive and it was no concern of the defendant whether this use was rightful or against the will of the owner. That question might be cogent if the railroad company were the party sued, but it may not be urged to relieve the defendant of liability. (Wittleder v. Citizens' El. Illuminating Co., 47 App. Div. 410.) So by analogy it is not important to the plaintiff whether the defendant had obtained permission of the railroad company to emit its hot water upon this embankment, and the lack of license, if such be the fact, may not fasten responsibility upon the defendant for the injuries sustained by the plaintiff if no liability exists otherwise. In this aspect of the case each as to the other may be said to have been upon the premises rightfully or by the acquiescence of the true owner, and that being so the defendant in the emission of the hot water through its pipe was called upon to exercise reasonable caution. (McCarty v. N. Y. C. & H. R. R. R. Co., 73 App. Div. 34; 76 N. Y. Supp. 321, and cases there cited.)

If the plaintiff were upon the pathway when injured, clearly the jury would be justified in finding that his injuries were the result of the negligence of the defendant. The extensive travel along the path must have been known to its servants or, by the exercise of a fair degree of diligence, might have been known to them. The jury might well say the forcible discharge of a large volume of boiling water through this pipe into this much frequented pathway without any warning or any investigation to ascertain if people were passing along in front of the stream was negligence approaching a reckless disregard of the safety of others.

This case stands on the record before us on a somewhat more narrow margin. The court charged the jury in this language, “ The precise point where he was injured is not of material or vital significance in this case if he was upon the premises of the railroad, except in so far as it tends to throw light upon the main issues here,” which was duly excepted to. The jury were, therefore, permitted to impute negligence to the defendant if the boy when injured was anywhere on the premises of the railroad company in front of this stream. I think the charge in this respect, in view of the circumstances appearing in the case, laid down the proper rule. The beaten path was three or four feet wide and was less than a foot and one-half above the continued line of the pipe, and hot water expelled through it would in any event, with the natural spreading of the stream, reach nearly to the crest of the embankment. Again, it is within common experience that in passing along an irregular footpath of this kind travelers do not follow the track closely at all times, and that is especially true of children, and they traveled 'along this course considerably. The entire distance by the slope to the defendant’s premises was less than twelve feet, and all along this open space' boys were very apt to wander in their playing or in passing along to- and from Bailey avenue. The witness Ida Buchan testified that she-had seen boys playing around there near the bridge works and seen, them over on the opposite of the bridge works in the pond, and I. Iiave seen children coming that way to the meat market.”

Another potent factor in determining the defendant’s liability is-that it was the affirmative act of the defendant’s employees which caused the injuries. There are a series of cases cited in the brief of the appellant’s counsel of which Nicholson v. Erie Railway Co. (41 N. Y. 525); Sutton v. N. Y. C. & H. R. R. R. Co. (66 id. 243), and Freeman v. Brooklyn Heights R. R. Co. (54 App. Div. 596) are types, but in each of these cases there was no act done-by the defendant. The negligence, if'any, was negative or passive, in its character, which constitutes, a clear distinction recognized in all the authorities. In the Nicholson case the plaintiff’s intestate-was passing over the tracks of the defendant and at most was there, only by the implied license of the defendant. A bunch of cars-standing on the track was set in motion by a violent gale and ran over Nicholson and killed him. It was held that the defendant: owed no active duty to the decedent, a mere licensee. In the Sutton case the plaintiff’s intestate, also a licensee, was killed by a car-running backwards without any human agency setting it in motion. In the Freeman case the plaintiff, a boy ten years of age, confessedlysui juris, had left the footwalk and was going over a curved girder

which sustained the bridge. In crawling between the guard wire owned by the defendant and the lamppost he was burned by the wire, which had become charged with electricity in some unaccountable manner. He grasped the. wire and received a shock which injured him. There was no evidence of defective construction of the trolley line, and the point was distinctly made in the opinion that there was no active negligence of the defendant.

These cases are to be distinguished from the present one where the positive direct act of the defendant’s agents caused the in junes, and Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289); De Boer v. Brooklyn Wharf Co. (51 App. Div. 289), and Walsh v. F. R. R. Co. (145 N. Y. 301) are among the many cases which émphasize this distinction. Again, as already suggested, the plaintiff was not the licensee of the defendant, and that is the marrow of the cases relied upon by the appellant’s counsel.

In this case the slightest care on the part of the defendant’s servants would have obviated any danger. To look out along the course of the projected stream and ascertain if the way was clear required but a moment’s time. The deflection of the pipe downward or to protect it by a hood could have easily been done and removed the peril. In Driscoll v. Newark & Rosendale Lime & Cement Co. (37 N. Y. 637), where the plaintiff’s intestate, a licensee in the path on the defendant’s land, was killed by a rock thrown out of a quarry which the defendant was blasting and of which the decedent was not warned, the court say at page 639 : “ That it is but a slight measure of precaution against injury, to give notice in season to persons who may reasonably be expected to be within range of such explosion. * * * It was at least due to whoever was lawfully within reach,- to look and see if persons were near, and if so to warn them.’.’ At best the use of this steam and hot water with the territic force in its emission was perilous to people passing along this pathway. Any point between the defendant’s premises and the footpath was in close proximity to the latter; there was no fence or guard separating the embankment from the footpath; children were accustomed to pass along there and deflect from the beaten path; all of which are circumstances bearing upon the defendant’s negligence.

The plaintiff may not be said to have been careless, and it is not so contended. He had never seen the pipe, had no notice he was in any peril, and was playing in the; same locality which he- had frequented. (See Hoes v. Edison Gen. Elec. Co., 161 N. Y. 35.)

Dr. Johnsori was the physician who attended the plaintiff and described the extent of the injuries inflicted. The area covered by the scalding was eight by fifteen inches “ extending from the fib down over the hip,” and the flesh and tissues sloughed off and proud flesh grew in and was scraped off and skin grafting was twice performed. Ulcerations were occurring at the time of the trial and the scar tissue was liable to break down at any time. He was asked : “ Can you- with reasonable certainty determine how long that condition of the breaking down of this tissue will last % -A. It may continue for years. Any irritation of the clothes may break it down for years to come.” A motion was made to strike out this testimony, which was denied and an exception taken; The examination continued : “ The muscles immediately beneath the skin where the burn was were burned away, part of them. That- side is not as •large as the other side. That will have' the effect to draw the spine to that side as it draws the body- to that side. I think that condition will be permanent. Q. You can say with a reasonable degree of certainty that that condition will be permanent ? - A. I think that side will always be drawn, the body will always be drawn to the injured side. Defendant’s Counsel: 1 move to strike out the answer until the witness can - say he can tell with reasonable certainty. By the Court: I will let it stand. Mr. Babcock : As not within the range of expert testimony and incompetent and immaterial.” The physician had been describing an existing wound and the testimony objected to related wholly to the probable effect of that precise condition and not to any new or supposititious'disease which might be evolved from it, and I think the evidence was' competent. (Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y. 61; Knoll v. Third Ave. R. R. Co., 46 App. Div. 527; affd., 168 N. Y. 592.)

The judgment and order should be. affirmed, with costs and disbursements to the respondent.

McLennan and Williams, JJ., concurred; Adams, P. J., and Hiscock, J., dissented.

Adams, P. J.

(dissenting):

While I am quite inclined to take the view of this case indicated in the first-paragraph of Justice Hiscock’s memorandum, I prefer to place my ■ vote for reversal upon another ground, concerning which I feel-more certain. I refer to the exceptions taken to certain portions of the evidence of Dr. Johnson and which appear at folios 122 and 123. It seems to me this evidence was clearly incompetent and inadmissible. It amounted to nothing more than the merest conjecture upon the part of the witness as to what might happen in the future. A lay "witness could have given the same answer just as well as the doctor, and it would have been quite as valuable, which is equivalent to saying that it was of no value coming from either source. But it undoubtedly gave the jury an opportunity to speculate and to- assume that what the witness said might happen very likely would happen. I think the- damages-awarded by thé jury in this case were enhanced by reason of this incompetent evidence.

The contention of the respondent’s counsel that all objection was waived by permitting the questions to be answered is not tenable. The form of the questions was entirely proper and unobjectionable, but the answers were not what the questions called for, and, therefore, the only thing the defendant’s counsel could do was to move to strike them out. For the refusal of the court to grant this motion I think a new trial should be granted.

Hiscook, J.

(dissenting):

I am unable to agree with the conclusions reached by a majority of my associates in this case for the following reasons :

First. The trial justice by his charge and refusals to charge permitted the jury to find a verdict for plaintiff, -although the latter at the time of the accident was several feet out of the path actually used by travelers and down the embankment towards defendant’s works. A recovery has been allowed upon the theory of negligence. There was ' nothing defective about defendant’s exhaust pipe. It can only be said that it was bound to use reasonable precaution not to injure those who might properly and lawfully come within reach of the escaping steam. Assuming that the railroad company had established a license in behalf of those who desired to travel through its grounds, I do not think that the evidence discloses that by this license people had been accustomed to go where some of the evidence showed this boy was when injured — several feet down the bank. I do not think the evidence discloses such a prior usage of the embankment where plaintiff might have been under the evidence, as called upon the defendant to reasonably anticipate that he might he there, and, therefore, to guard against injuring him by the steam in question.

Second. I think the medical evidence which defendant’s counsel moved to strike out at folios 121, etc., where the doctor testified that certain results may ” follow in the future, was incompetent. I do not think that the doctor’s answer came within those rules of reasonable certainty which are applicable to that class of. evidence. The question was put to him in proper enough form, and, therefore, .no foundation laid for an objection to it. The error only appeared when the doctor gave his evidence, and the only way to get rid of it was by a motion to strike out, which the defendant’s counsel promptly made.

Judgment and order affirmed, with costs.  