Stiasny v. Metropolitan Street Railway Co.

O’Brien, J.: The action was brought to recover for personal injuries alleged to have been sustained by Albert E. Stiasny through the negligence of defendant’s servants in starting a Madison Avenue car on June 24, 1898, while he and his wife were alighting therefrom at Seventy-eighth street. The wife, Carolina Stiasny, testified that the car came to a perfect standstill on the corner of Seventy-eighth street, and her husband stood on the step and turned and offered her his hand, and the car started, throwing him violently to the pavement. Upon the issue presented by conflicting evidence as to the manner in which the accident occurred the jury found, in answer to specific questions, against the plaintiff. A motion was then made upon the minutes of the judge to set aside the verdict and grant a new trial upon the exceptions taken, and because the verdict was contrary to the evidence and the law, which motion was denied. From the judgment entered and the denial of the motion for a new trial this appeal is taken. The record does not contain all the evidence; but the questions sought to be reviewed are presented in the form of a bill of exceptions relating to rulings on evidence and to error assigned in the charge of the court to the jury. The latter was the statement made by the judge that the jury might determine “ whether if the husband had been thrown upon the pavement by the unexpected and wrongful starting of the car after it had stopped and before they alighted, whether there would have been any outcry upon her part, or the part of any one, against the motorman for his action^ quick and prompt at the time being, whether it would have been natural for fault to have been found immediately with his action.” No exception was taken to this statement, and the question sought to be raised is not, therefore, before us for review. The cases relied upon by the appellant to support the contention that upon a motion for a new trial, regardless of exceptions, a statement such as was made in the present case by the judge in his [174] charge is before the court for examination on-appeal are clearly distinguishable. In Davison v. Herring (24 App. Div. 402) it was held, as stated in the head note, that “ where an appeal is taken from an order denying a motion for a new trial, as well as from the judgment, the Appellate Division may set aside a verdict which) upon due examination, appears to have been influenced by passion or prejudice,” And it was therein said: “A verdict improperly influenced by a misdirection of the judge or by prejudicial statements will be set aside upon motion upon a case made, although no exception has been taken at the time of the trial.” The remarks here complained of, however, contain no misdirection by the judge, nor does it here appear that the jury in their verdict were affected by passion or prejudice; nor was the statement made so serious as to justify the conclusion that the jury were either controlled or influenced by it in their determination. Had the attention of the court been called to it, no doubt it would have been corrected; and if not, the duty of counsel would then have been to except, and thus bring up the question on appeal. In People v. Hill (37 App. Div. 327), relied upon by appellant, the judge during the trial referred to the defendant as “ quibbling ” in his testimony. That, however, was a criminal action; and it is specially provided by statute that errors affecting substantial rights may be reviewed regardless of exceptions. (Code Crim. Proc. § 542.) Moreover an exception was taken in that case, and thereafter the court charged that the jury was to determine the questions of fact regardless of the opinion of the court or counsel, but on appeal it was held that the remark made was so serious that the error was not cured by the charge. The exception taken to the introduction of the ordinances and police regulations relating to the place for stopping cars and vehicles at crossings and intersecting streets is not tenable in view of the decision in Maisels v. Dry Dock, E. B. & B. St. R. R. (16 App. Div. 391). • The next exception is to the ruling of the court in rejecting a photograph of Albert B. St-iasny. The plaintiff sought by cross-examination of two of the defendant’s witnesses to show that they neither saw the accident nor were upon the car at the time it occurred; and in that connection the witnesses- were asked to [175] describe Mr. Stiasny, who was the person injured. Thereafter, for the purpose of contradicting the descriptions given by the witnesses, the photograph was offered in evidence, and, though identified by Carolina Stiasny, was excluded by the court upon the ground that proper foundation was not laid because the photographer was not called. The reason thus given for excluding the photograph was erroneous, because foundation could be laid for its introduction by any one who could testify that it was a correct likeness. For the purposes for which the photograph was sought tó be admitted, however, namely, to contradict the plaintiff’s witnesses, it was not competent as independent evidence; and before it was offered the counsel should have shown it to the witnesses and given them an opportunity to say whether or not the photograph was that of the person whom they stated they saw injured. This not having been done, the photograph was properly excluded. There remains to be considered the exception to the introduction in evidence of the order authorizing the plaintiff to prosecute this action. It was admitted by the learned trial judge upon the question of the good faith of the plaintiff in prosecuting the action, although he couples that admission with the observation, “ I do not hold that there is the slightest evidence of bad faith; but I allow any of her acts and steps in the course of this proceeding so that the jury may have the whole question of motive and good faith, as well as the facts tending to show how the accident occurred.” The plaintiff sued as a committee of a lunatic in whom the cause of action had vested, and she was the principal witness to prove the negligence of the defendant. She was the wife of the person injured, was interested in the recovery, and her interest in the controversy was a material element for the jury to consider in weighing her testimony. Upon her petition she had been authorized to prosecute the action, and it was certainly competent for the court to admit evidence of any act of hers in relation to the prosecution of the action which would enable the jury to judge of the weight to be given to her testimony. The fact that in this order there was a provision authorizing the plaintiff to make a contract with a lawyer, by which his compensation was to be a contingent fee of one-fourth the amount of any verdict recovered, would not make the order incompetent because apart from such recital the [176] order itself was some evidence of the interest taken in the prosecution of the action by the principal witness upon whose ' testimony the right to recover depended. Evidence that the attorney prosecuting the action was acting under a contract for a contingent fee is immaterial, and it would .not have been error for the trial judge to have rejected such evidence. This is all that the case of Sussdorff v. Schmidt (55 N. Y. 319), cited by the appellant, holds. But in no case has it been held that because such testimony was admitted upon the trial the judgment should be reversed. There was no request here to charge the jury that they were not to consider the fact that the plaintiff’s attorney was acting under a contingent fee, as bearing upon the plaintiff’s right to recover. The order, so far as appears, was not admitted to show that fact, nor did the admission of the order prove it. The fact that the committee of the lunatic was the plaintiff in the action and had procured the order authorizing her to commence the action to recover, and then offered herself as the principal witness to justify a recovery, was competent evidence to show the interest of this witness in the prosecution of the action as a fact bearing upon the weight that the jury should give to her testimony. The case was- submitted to the jury in a charge eminently fair and which presented with care the questions that were to be considered by the jury, and the jury specifically found that the car did not stop before Stiasny fell, and that Stiasny did not fall in consequence of the car stopping and starting up again. These facts exonerated the defendant from the charge of negligence, and upon that question this order could have no possible bearing. We think, therefore, that no error was committed which would justify us in reversing a judgment in a case fairly tried and carefully submitted to the jury, and in which no claim is made that the verdict is not sustained by the evidence. The judgment accordingly should be affirmed, with costs. Van Brunt, P. J., and Ingraham, J., concurred; Rumsey and Hatch, JJ., dissented.