Bardelli v. Pittsburg Contracting Co.

Per Curiam: The testimony amply shows that the defendant, through its superintendent, knew of the unsafe conditions from this rock [46] overhanging the tunnel for several days, and imperiling the men having to pass under it. It is not merely a presumption arising from the fact that this rock remained unsupported while it was being loosened as the blasts continued, but because of actual warnings and notifications by the men who. worked there, confirmed by the city engineer. The matter of contributory negligence was submitted to the jury. The testimony raised an issue whether scaling was any part of plaintiff’s intestate’s duty. Against this verdict we cannot hold that deceased was negligent in going on with the work. Neither did he assume the risk where the danger had been discoverable and was actually made known to the employer prior to such injuries. (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.) The exhibition of the crippled child to the jury is assigned as reversible error. The diversity in decisions admitting testimony as to family circumstances is pointed out in Sedgwick on Damages (Vol. 2 [9th ed.], § 580). Lockwood v. N. Y., Lake Erie & Western R. R. Co. (98 N. Y. 523) makes it competent to have the number and ages of dependent children stated, and probably their conditions, including physical defects. But to keep before the jury the crippled body of a seven-year-old child is different. A witness could without difficulty describe the helpless state of such a defective child. If it was ground to reverse because a jury had shown to it a picture of a deceased wife (Smith v. Lehigh Valley R. R. Co., 177 N. Y. 379), the exhibition of this afflicted boy, mute, helpless and deformed, which the jury were allowed to keep in view, was bound to move their feelings, or at least surround them with “ an atmosphere freighted with sympathy.” (Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y. 219, 225. See, also, Schwanzer v. Brooklyn Heights R. R. Co., 18 App. Div 205; Harrison v. N. Y. C. & H. R. R. R. Co., 195 N. Y. 86.) Considering this influence, which is reflected in the verdict, the recovery of $16,000 should be reduced. The earnings of $4.50 a day are not shown to be continuous. Other testimony as to heading foremen show occasional layoffs and other interruptions in their employment. A fair and just compensation [47] should not exceed $12,000. (Hoffman v. N. Y. C. & H. R. R. R. Co., 42 Misc. Rep. 579; Stevens v. Union Railway Co., 75 App. Div. 602; Conrad v. N. Y. C. & H. R. R. R. Co., 137 id. 372.) The judgment and order should be reversed and a new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery to $12,000, with interest from March 6, 1913, in which event the judgment as so modified and the order are affirmed, without costs. Jenks, Pt J., Carr, Rich, Stapleton and Putnam, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce the recovery to $12,000, with interest from March 6, 1913, in which event the judgment as so modified and the order are unanimously affirmed, without costs.