Pender v. Brooklyn City Railroad 32 N.Y.S. 366

PRATT, J.

This is an appeal from a judgment rendered upon a verdict of a jury giving the plaintiff damages for the loss of services of his child, alleged to have been caused by the negligence of the defendant, and from an order denying a motion for a new trial. The evidence upon various circumstances connected with the trial was conflicting, but there seems to be no such preponderance of evidence in favor of the defendant as would have warranted a dismissal of the complaint. The cause was submitted to the jury by a charge as favorable to the defendant as the facts warranted. The judgment must stand, unless some erroneous ruling was made in the *367course of the trial. The principal exception relied on is to the following question put to a witness for the plaintiff: “Q. Running at a speed of ten or twelve miles an hour, at what distance could it [the car] be stopped? A. About 100 feet.” This question was objected to, and allowed by the court. It was asked of a motorman, and was not objected to on the ground that he was not an experienced man in running cars as a motorman, but upon the ground that the question contained an assumption that the cars were running at that rate, and this misled the jury. On the question of speed, the evidence was conflicting. One witness said the car was running at a high rate of speed; another, that it was going very fast; a witness for defendant, that it was going about six miles an hour. Besides, it appeared in the evidence at what point the car struck the girl, and where it was brought to a standstill after the accident. Therefore the distance at which a car could be stopped when going at different rates of speed was not material. Another answer to defendant’s contention upon this matter is that the evidence could not have prejudiced the defendant, as the greater the speed at which the car was running the less the negligence of the motorman in failing to stop the car, or, in other words, the greater the distance within which the car could be stopped. Again, we think the question, within the limits of the evidence, “a high rate of speed,” and “going very fast,” would justify such a question. It is a privilege of counsel, always, to propound hypothetical questions to experts, to assume, within the evidence, any state of facts which he claims the evidence justifies, and have their opinion thereon. Harnett v. Garvey, 66 N. Y. 641; Filer v. Railroad Co.. 49 N. Y. 42. Judgment and order affirmed, with costs.