Bliss v. United Traction Co.

75 A.D. 235, 78 N.Y.S. 18

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1902
• Status: Published

Opinion

Chase, J.:

Franklin Bliss, a child five years and eight months old, was run upon by one of the defendant’s trolley cars and received injuries from which he died. This action was brought by his mother as administratrix, and judgment has been entered upon the verdict of a jury in favor of the plaintiff against the defendant. The accident occurred on a clear day on an unobstructed street in the city of Troy. The decedent ran from a yard on the east side of a street, on which the defendant has a double line of tracks, to a point on the west side of the street where another small boy was standing, and then at once started back, and was hit by a car running on the east track. The boy’s legs -were crushed and he was pushed along the track for some distance.

The plaintiff claims that the motorman in charge of the car was careless and inattentive to his duties and that he failed to stop the car in time to prevent the accident, although the boy was in plain sight and the danger manifest. The motorman testified that he was running at a moderate rate of speed with his power turned off, and that he saw the boy crossing the street and that he stopped in the middle of the west track and remained there until the. car was within eight or nine feet of him, and then ran rapidly in front of the car.

Tie.further testified'that he immediately used his brake and worked the reverse current, but that before he could stop the car thé accident occurred.

The court, in charging the jury, said: “ It was the motonnan’s duty in charge of this car, as an employe of the defendant, if he had time, to stop the car * * "" and prevent running over this child, if by exercising reasonable diligence and care he could do so. If you find that the motorman exercised such reasonable care and diligence, then your verdict will be for the defendant, the railroad company. If you find that the motorman did not, and that this child was injured, fatally injured thereby, through no negligence or want of care on its part, or on the part of its mother^ then your verdict may be for the plaintiff.” The ■ motorman’s ability in the exercise of reasonable care to stop the car in time to prevent the accident was thus left to the jury as the determining factor in deciding the case. The testimony in regard to the distance in which a car under the circumstances then existing could be stopped was of the greatest importance.

Plaintiff’s only evidence in regard thereto consisted of the testimony of one Ronan. He had previously been employed by the defendant as a motorman for nine months. He testified: “ The effect of reversing the current on the wheels of a car is, when you reverse the current it backs it up, starts the wheels going the other way; during my experience as' a motorman I did not have occasion to use the reverse in order to stop my car.”

He further testified that one time when going down quite a steep hill in Cohoes he by accident put the power on when the current was reversed. His language is : “ Why, I had my hands on the brakes coming down hill and happened to turn it over a notch and it stopped and went back that way.”

He further stated that he used the reverse lever once on a level road, but that the rails were slippery and it would not stop at all. He further testified : “ I never tried it when the rails were dry; never saw it done when the rails were dry.”

Omitting the objections and rulings, the record continues as follows: “Q. Now, if you had occasion to stop your car suddenly to avoid some obstruction or obstacle to it and applied the brake vigorously, and the car was going at a rate of speed not to exceed ten miles an hour, within what space between the time of the application of the brake and the time of the stopping of the car, would the car stop ? A. About twenty-five feet. Q. About what distance would the car cover if you used the reverse power ? A. I never had occasion to use the reverse. Q. Well, do you know within what distance it would stop if you • had used it ? A. Only what experience I had coming down that hill, Q. If you know, I would like to have you state within what distance the car could he stopped by the use of the reverse power under the conditions of the last question ? A. It ought to be stopped instantly.”

The record does not disclose that the witness had special knowledge in regard to stopping a car .by the use of a reverse current, enabling him to speak as an expert.

A momentary incidental experience with a reverse current under special conditions is not sufficient to make one an expert, especially as to its use under entirely difEerent circumstances. The witness was disinclined to answer as an expert, but the court, notwithstanding specific objections, allowed repeated questions- and his answer, “ It ought to be stopped instantly,” was clearly a guess and a mere speculative opinion.

It is quite possible that, under the charge of the court in connection with this testimony, the jury may have reasoned that as the motorman confessedly saw the boy start to run in front of his car when he was eight or nine feet, away from him, the car ought to have been stopped instantly and that the failure to stop the car instantly was negligence on the part of the defendant. Such conclusion should not be based upon the testimony of a witness whose competency to speak as an expert had not been sufficiently shown.

It is unnecessary to discuss the merits of this case, but for the. reason stated the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred ; Fuesmam, J., not sitting.

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