Opinion
December Term, 1899.
Cassius C. Davy, for the appellant.
Elbridge L. Adams, for the respondent.
In the prevailing opinion of Chief Judge PARKER, written upon the reversal of the former judgment, it was held that no custom was shown to take passengers on except at the station, and that, without evidence sufficient to authorize a finding of such a custom, the defendant did not owe the duty to use care at that point to protect any one who might be boarding the train without authority. Upon this trial, however, the plaintiff has produced evidence from which a jury could find that such custom existed with the acquiescence, if not the encouragement, of the defendant's employees. The evidence was such that the question could not have been taken from the jury, and they have twice found for the plaintiff thereupon.
The plaintiff's contributory negligence was properly submitted to the jury. This has been once held by the General Term in this department, but apart from that authority it cannot be said as a matter of law, under the circumstances of this case, that the plaintiff was required to look for the approaching engine when she got upon the car. She might assume even though the engine was approaching that it would approach the car with such care as not to cause her injury.
Nor can the verdict, as a matter of law, be said to be excessive. There was a sharp conflict in the evidence, and the plaintiff's witnesses were by the jury believed. Upon that evidence the verdict was justified in amount.
The amendment to the complaint was not necessary. The variance, if such there was, was at most an immaterial one, and could be corrected by an amendment either before or after an objection. The case has once been tried, and the defendant had full knowledge of the issues which the plaintiff tendered. It could not in any way have been misled.
Various exceptions are called to our attention, only one of which needs be discussed. At folio 139, this question was asked: "Q. After you went home, what did you do? Did you work at all? A. I wasn't able to work. I had to have a nurse for my daughter and I had to hire a woman to do my work. Defendant's counsel moved to strike out that she had a nurse for her daughter and a woman to do her work, on the ground that the answer is not responsive and incompetent. Overruled. Exception." That the answer is not responsive is an objection that lies only with the examining counsel. The answer was incompetent only because it was not pleaded. She was a widow and might have recovered such damages if she had pleaded them. But that it was not pleaded was not made a ground of the objection nor called to the attention of the court. The motion to strike out the answer was, therefore, properly denied.
The defendant can make no complaint of the fairness with which the issues in this case were submitted to the jury. In a very able charge the learned judge clearly outlined the exact questions which the jury were to determine. That there was sufficient evidence to justify a finding of the jury upon the several questions presented to them we have no doubt, and no exception has been called to our attention upon which this judgment can be reversed.
The judgment and order should, therefore, be affirmed, with costs.
All concurred, except ADAMS, J., not sitting.
Judgment and order affirmed, with costs.