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McCherry v. Snare & Triest Co.

Supreme Court of New York, Appellate Division

January 15, 1909

MCCHERRY
v.
SNARE & TRIEST CO. ET AL.

Appeal from Trial Term, Kings County.

Action by Mary McCherry, by Thomas McCherry, her guardian ad litem, against the Snare & Triest Company and another. From a judgment for plaintiff, and from an order denying motions for a new trial, defendants appeal. Affirmed.

[114 N.Y.S. 675] Lynn W. Thompson, for appellant Snare & Triest Co.

D. A. Marsh, for appellant Brooklyn Heights R. Co.

Reno R. Billington (J. Elmer Melick, on the brief), for respondent.

Argued before WOODWARD, GAYNOR, RICH, and MILLER, JJ.

WOODWARD, J.

While the plaintiff was a passenger upon one of the trains of the defendant the Brooklyn Heights Railroad Company, on the morning of December 20, 1905, she was injured by broken glass cutting her about the head and neck. This broken glass came from the windows of the car in which she was sitting, as the result of a collision with a large beam or girder which was being brought into place by a contractor for the purpose of making changes in the platform at the Manhattan end of the Brooklyn Bridge. The plaintiff secured a verdict for $3,000, which the learned court at the trial reduced to $1,500 by agreement with the plaintiff; and from the judgment entered upon this verdict, and from the order denying motions for a new trial upon the minutes, the defendants bring separate appeals.

There is little question that the evidence is sufficient to sustain the judgment, and while the amount of the verdict, after the reduction, seems rather large for the injuries which the record discloses, this was a question for the jury and the trial court, and we are not disposed to interpose our judgment for that of the triers of fact, as modified by the court. The Snare & Triest Company, which was alleged to be engaged in the work of constructing the addition to the platform, and which concededly was the original contractor for this work, insists that the evidence failed to establish that Fay, the foreman of the work, was in its employ. It is claimed that the Snare & Triest Company merely took the contract and turned it over to the Metropolitan Bridge & Construction Company, under a general contract with that company to do all of this kind of work for which the Snare & Triest Company should secure contracts. Fay was called as a witness by the plaintiff, and when first examined testified that he was at work for the Metropolitan Bridge & Construction Company at the time of the accident. His attention was then called to testimony given by him, in an action brought by himself against the Brooklyn Heights Railroad Company, to the effect that at the time of the accident he [114 N.Y.S. 676] was working for the Snare & Triest Company, and he then said that that testimony was true, that he had been in the employ of the Snare & Triest Company about nine years, and that he was told by the attorney of said company to say that he was in the employ of the said Metropolitan Company. We think that a man who has worked nine years for a company may be permitted to testify who his employer is. The contract between the said two companies purports to have been made May 1, 1904, but it was acknowledged November 17, 1906 (the accident occurred in December, 1905), and the witness who was produced by the said defendant to swear to said contract did not know when it was made. He was the secretary and treasurer of one company and the vice president of the other.

Without further analysis of the testimony, we are of the opinion that there was evidence that justified the jury in believing that the Snare & Triest Company was in fact doing the work which resulted in the plaintiff's injury. The exceptions to the rulings of the court sustaining objections to questions put to Fay on cross-examination do not present ground for reversal. At most the questions only called for a repetition of testimony already given. The witness had already sworn how he had received his pay; that is, by pay envelopes having the word " Metropolitan" on them. One of these envelopes was afterwards received in evidence.

But it is urged that the court erred in admitting evidence over the objection and exception of the defendant in reference to this issue. One George R. Ferguson was sworn as a witness in behalf of the defendant Snare & Triest Company, and testified without objection that he was a civil engineer in the department of bridges, city of New York, and that he had charge " of the drawing of the plans under which the Snare & Triest Company were to modify or change some portion of the island platform on the New York terminal of the Brooklyn Bridge in 1905. I have that plan with me." The plan was offered and received in evidence. After further explanations of the plans the witness was asked:

" On or about the 20th of December, 1905, do you know whereabouts in this terminal, upon this island platform, the defendant the Snare & Triest Company were at work?"

Counsel for Snare & Triest Company objected on the ground that the " contention is that the Snare & Triest Company were not performing any work at that time. I object to it upon the ground that it is incompetent; that this witness is not qualified to testify that the Snare & Triest Company were performing any work on that terminal at that particular time." The court said, " Ask him," and defendant took an exception.

It is to be observed in this connection that the question was one as to the witness' knowledge, and was one to be answered by " Yes" or " No." The question was whether he knew where the defendants were at work on this terminal, and if he did know that the Snare & Triest Company was at work there he was competent to say so, as he was equally competent to say that he did not know. His answer shows that he was competent to answer the question asked, for he says:

[114 N.Y.S. 677] " On or about the 20th of December, 1905, I don't know whereabouts in this terminal upon this island platform the defendant Snare & Triest Company were at work. I do not know as to any work being done on that island platform at that time. The work was done some time between July, 1905, and January-the latter part of January-1906. The exact spot that they were working on any particular part of the work I could not state."

It is evident that there was no error up to this point. The witness was then asked:

" Were they working upon the terminal represented by this map during that period?
" Mr. Thompson: I object to that."

The question was then ...


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