MARY L. N. CURTIS, as Sole Executrix, etc., of PIERSON C. CURTIS, Deceased, Respondent,
HUDSON VALLEY RAILWAY COMPANY, Appellant.
APPEAL by the defendant, the Hudson Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 1st day of November, 1910, upon the verdict of a jury for $18,500, and also from an order entered in said clerk's office on the 17th day of November, 1910, denying the defendant's motion for a new trial made upon the minutes.
James McPhillips [Lewis E. Carr of counsel], for the appellant.
Holmes & Bryan [John B. Holmes and Edgar T. Brackett of counsel], for the respondent.
A collision occurred at a street crossing between the defendant's trolley car and the automobile which the plaintiff's intestate was driving, resulting in his death. The case is a very close one, both as to whether the negligence of the defendant has been established and whether the intestate was free from contributory negligence.
As bearing upon the defendant's negligence, the motorman and conductor upon the car, a bystander near the crossing and the only passenger on the car heard the whistle blow. The two survivors in the automobile heard no whistle. The witness Silvernail was walking along the road with a gentleman and lady, about 200 feet from the railroad track, and he was engaged in telling them a story. The first thing that attracted his attention to the accident was the crash. He was evidently paying no attention to the trolley car nor listening for any signal. It does not appear whether he had been at the same place before when trolley cars were going by. He swears that
he did not hear any whistle blown, but will not swear positively that it was not blown. He was then asked: 'Were you in a position where you could have heard if there had been one?' This was objected to as calling for a conclusion, the objection overruled and exception taken. He answered: 'I would have expected to hear it because I have heard it on other occasions from a greater distance.' A motion to strike out the answer was denied and an exception taken.
The witness Abbie McKay, who was walking along the road near the Palmer House, 700 or 800 feet away from the railroad, did not hear any sound or whistle blown or bell rung. She was asked: 'Were you so situated that you would have been likely to hear had there been one blown or rung? [ Objected to as incompetent and improper and calling for a conclusion; objection overruled; exception taken.] A. Yes.'
Under quite similar circumstances this same testimony was received from seven witnesses under the defendant's objection and exception.
It is a well-known fact that many people within the hearing of a familiar sound fail to observe it. A half a dozen people may sit in a room where a clock strikes; two may hear it, four may not notice it. The plaintiff evidently realized that this negative testimony was of but little probative force and had but little bearing upon the question whether the whistle actually sounded or not, and it was sought to strengthen the testimony by the opinion of the witness that he would have heard if it had been sounded. Otherwise the conclusion of the witness was entirely immaterial. The testimony in substance means that the whistle did not sound and that the witness knows this, because if it had sounded he would have heard it. It was for the jury to pass upon that question and conclude how intent Silvernail was upon entertaining the clergyman and the young lady, and determine the conditions of the wind, the atmosphere, the condition of the hearing of the witness and the distance which sound under such circumstances would naturally be conducted. The decision of the court saved the jury all this trouble and left it with the witness.
Recent cases have made more clear the rule that the conclusion of the witness upon the very ...