REARGUMENT of an appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of April, 1910, upon the verdict of a jury for $3,500, and also from an order entered in said clerk's
office on the 2d day of May, 1910, denying the defendant's motion for a new trial made upon the minutes.
D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
Henry A. Powell, for the respondent.
The plaintiff was a passenger on one of defendant's cars on Myrtle avenue, borough of Queens, on the 17th day of August, 1905, at about eight o'clock in the evening. The evidence was sufficient to warrant the jury in finding that the car was running at a high rate of speed; that the motorman suddenly discovered a heavy truck on the track in front of him; that he reached up over his head, apparently to throw off the electric current, and that this was followed by a flash of light and the motorman called to those on the car to jump, he himself setting the example; that the car collided with the truck, but not hard enough to do any particular damage, and that the plaintiff, in following the command and example of the motorman, jumped from the car and sustained injuries for which the jury has awarded her a verdict of $3,500. There would seem to be no question that the motorman was guilty of negligence; the result which followed showed that if he had simply remained at his post, using the appliances furnished him, there was no danger; the car might easily have been stopped without any one being injured in the least. It is true, of course, that it is not necessarily negligent for one placed in a position of great danger to do the wrong thing, but in this particular case the evidence tends strongly to show that there was no great danger to be apprehended, and that the accident to the plaintiff resulted because the motorman operated his car in such a manner as to cause the plaintiff to believe herself in danger and to act upon that belief.
It is urged on this appeal that the learned trial court erred in refusing to charge the jury 'that even if the motorman did jump, and called out 'Jump' and that was simply misjudgment, and there was no negligence in the operation of the car, the plaintiff cannot recover.' The court did not indicate to the jury that this
was not substantially the law; he merely declined to charge upon this point 'except as charged. I have gone fully into the duty of the motorman.' That is, having laid down the rule in reference to the conduct of the motorman, the court refused to go into details. There is no objection suggested to the rule as laid down by the court, and we are of the opinion that the defendant was not entitled to this instruction. The action of the motorman in jumping, and in advising his passengers to jump, had very little to do with the question of the defendant's negligence; it was of greater importance in determining the question of contributory negligence. If the plaintiff had jumped from the car without the justification of a real or supposed danger in remaining where she was she would not have been entitled to damages, and the fact that the motorman, who was presumed to know the danger better than an ordinary passenger, himself jumped and advised others to jump, clearly afforded a justification for the plaintiff's conduct. The court charged clearly upon this point, and no one can fairly read the charge and question that the jury had a proper instruction upon the issues.
We are persuaded that the authorities relied upon by the defendant do not justify holding that there was error in the admission of the testimony of Dr. Nafis. The objection related to a hypothetical question, the defendant disclaiming any intention to object on the ground that the physical facts were not all stated in the question, and appears to have been based on the fact that the doctor did not see the plaintiff until some years after the accident. How this could make the question, otherwise proper, improper, we are unable to discover. He examined the plaintiff for the purpose of testifying. He was given a hypothetical question and asked if he could state with reasonable certainty whether the condition which he found could have been produced by the accident which had been detailed in the evidence. Answering this question in the affirmative, he was asked the further question whether they could produce the result, and answered this 'yes.' No objection occurs to us which may be properly urged to the ruling of the court in admitting this testimony. All of the facts on which the question was based were in evidence, and a qualified physician might properly testify whether he could determine upon a probable cause with reasonable certainty,
and the authorities controlling in this court are not in ...