Roberts v. . Johnson

58 N.Y. 613, 1874 N.Y. LEXIS 545

• Court: New York Court of Appeals
• Decided: November 10, 1874
• Status: Published

Opinion

Grover, J.

The non-joinder of F. A. Palmer as a defendant was not set up in the answer. This, if such joinder was necessary, was a waiver of the objection. (Code, § 148.) But it was not necessary. The action was for a tort. In such cases, the plaintiff may proceed against any one, all, or such number of the wrong-doers as he may choose. W. B. Palmer has not appealed from the judgment. The other •defendants have no interest in the question whether he was •entitled to costs upon the dismissal of the complaint as to him, and cannot raise it upon their appeal.

James D. Hewitt was competent to give an opinion upon medical and surgical questions. He was a physician, graduate of a medical college; had practiced for a series of years, and been a surgeon in the army for a considerable period. The fact that he was not in full practice at the time of the occurrence in question did not show a disqualification in this respect. That was a matter for the consideration •of the jury, in determining what weight they would attach to his opinion. The court did not. hold that what the •driver said when the plaintiff got into the stage was competent evidence. The question was simply whether the witness recollected whether the driver made any remarks to her at that time. The question did not call for what he •said. An answer to the former may have been competent for various purposes, and, if not, could not have prejudiced the defendants. The exception was not well taken.

The complaint, though informal, was sufficient. It alleged that, at the time in question, the defendants were common ■carriers of passengers, by omnibus or stage, and that they undertook to carry the plaintiff in such vehicle for hire. Whether they received any compensation from the other passengers was immaterial. The proof of the driver’s negligence was sufficient to warrant the submission of that question to the jury. It tended to show that, while the plaintiff was getting out, the horses started, by means of which the plaintiff was violently thrown upon the ground and injured. This showed, prima facie, either that the horses were unsuitable for such service, or the driver incompetent or negligent in the performance of his duty. If the starting of the horses was attributable to some other cause, for which the defendants were not responsible, it was for them to show it. This results from the fact that where proper horses and suitable drivers, who attend to their business, are employed, the horses will not start while passengers are getting into and out of the stage. If any tiling occurs causing such a start, which is beyond the control of the driver or proprietor, they can readily show it. Such a fact is peculiarly within their knowledge, while,’in most cases, the persons injured would be entirely ignorant of it.

The judgment appealed from must be affirmed, with costs. All concur.

Judgment affirmed.