Garduhn v. Union Railway Co.

Hirschberg, J.: The plaintiff while driving across the defendant’s tracks in the daytime was struck by a trolley car and seriously injured. The questions of the defendant’s negligence and of his freedom from negligence, presented in conflicting evidence, were submitted to the jury in a careful and accurate charge, and have been resolved in the plaintiff’s favor. The verdict, $1,000, is very moderate. No points ■are presented on the appeal which have not been frequently decided so as to support the judgment on the facts as it -must be assumed that the jury found them. Two alleged errors in ruling on evidence are presented. The witness Dice, after testifying in substance that he had driven horses for over twenty years, and was familiar with the speed of wagons, was permitted to give his judgment as to the speed of the trolley car at about the time of the collision. He did not say in terms that his experience in driving had given him knowledge of the speed of trolley cars, but there can be no disqualifying difference in the exercise of judgment as applied to the two classes of vehicles or conveyances, and experience in the speed of the one necessarily involves some judgment as to the speed of the other. The ruling is within the spirit of the adjudications. (Salter v. Utica & Black River R. R. Co., 59 N. Y. 631; Northrup v. New York, O. & W. R. Co., 37 Hun, 295; Scully v. New York, L. E. & W. R. R. Co., 80 id. 197; Strauss v. Newburgh Electric R. Co., 6 App. Div. 264.) The witness Angevine, on the other hand, was not permitted to state whether the car was going fast or slow at the time of the accident. This evidence, however, was not excluded .as improper, but solely because the witness had stated that he did not notice the speed of the car with sufficient particularity in the judgment of the learned trial justice to enable him to form an •opinion on the subject. Before a witness can be allowed to testify that a car was going fast or slow, he should at least be able to say ■that he had noticed the speed, so that his answer will be evidence and not a mere guess. Here, so far as he testified on the subject [604] at all, he expressly disclaimed notice or attention. Several other witnesses testified that the car was going slow, and the defendant was not prejudiced by the ruling to the extent of requiring reversal* were the ruling error. The judgment and" order should be affirmed. Judgment and order unanimously affirmed, with costs.