The defendant’s foreman gave testimony upon the trial, in which he was supported by another witness, that the hop wagon, as was customary, had been laid up the previous winter under cover, taken apart, and on the 24th of May (three days before the accident) he put the wagon together for the purpose of using it in this business; that he put on this step five braces, and washers on the bolts which connected the step with the bottom boards; and, according to his evidence, prepared the wagon in all respects to be safely used to carry the hop tiers to and from their work. The court, in charging the jury, properly charged it as to the duty devolving upon the plaintiff to establish the negligence of the defendant, and the freedom from negligence of the plaintiff, reviewing to some extent the facts; and upon the close of the charge the defendant’s counsel requested the court to charge the jury that Welch, in putting the wagon together, and putting on the steps, and preparing it for use, was discharging the duties of a fellow servant with the plaintiff in the execution of the work, and did not represent the defendant in that regard. This was refused, the court saying:
“I will hold in this case that this man Welch was foreman, and he was the defendant for the purposes of this case upon the question of furnishing a reasonably safe and suitable vehicle and appliances attached to convey this plaintiff under the contract.”
There was an exception to this charge and to the refusal to charge as requested. The appellant’s counsel earnestly contends that this was error. It appeared without contradiction in the case that the defendant gave -no personal attention to this business of hiring these laborers and operating this hop farm, but left that entirely to Welch. Welch also had charge of this wagon. There does not appear to have been any repairs made upon the wagon. The defendant had owned it and used it in this business for a couple of years. The defendant purchased the wagon some two years before the accident, and then it was a secondhand wagon. And upon these facts, undisputed, and the testimony of Welch above referred to, the court held as above stated. It was the duty of the defendant to furnish a reasonably safe conveyance under his contract with the plaintiff to take her to and from her work. This *968was a primary duty; and, as he devolved that duty upon Welch, Welch represented him in putting this wagon together in condition for use, and in providing it, thus put together and arranged, for the plaintiff’s use. If Welch had notice of the defective condition of this step and its connections with the wagon, that was notice to the defendant; that was a question for the jury whether such notice was received by Welch, and they have found with the plaintiff. It would not be profitable to review the great number of authorities upon this subject. They fill volumes of our law reports, and it will not be attempted. The cases cited by the learned counsel for the appellant are not pertinent. They are mainly cases holding that in the detail of the work of the master, where one employé is injured by the negligence of a co-employé, the master is not liable. This exception is not well taken.
Later on, the defendant’s counsel requested the court to charge the jury:
. “That the plaintiff cannot recover in this action if the negligence which was the proximate cause of the accident is found to be the negligence of a co-employé. The Court: I refuse to charge in that way.”
This request was not accompanied by any statement of facts or any evidence to which the request should apply. The court was, in effect, requested to state an abstract proposition of law. In the points before us the appellant’s counsel claims that this request had reference to the action of the driver of the wagon, who was a co-employé of the plaintiff; and that, if he had been careless in the management of the horse, so that the starting of the horse had caused the accident, then the plaintiff could not recover, as the negligence of the driver would- have been the negligence of the fellow servant. Had the learned counsel made that point to the trial court, and had thereby shown the pertinency of the proposition of law that he requested to have charged, and it had been refused, the exception would have brought a very serious question before us. As it is, we cannot consider it here.
An exception arose upon the trial upon a question asked by the plaintiff’s attorney of her physician who had attended her after her injury. The injury was to the knee, and the doctor, in explaining the character of the injury, was inquired of about the ligaments of the knee, and what office they performed. It is not perceived what error there was in this, and, if error, how it could have injured the defendant. The doctor had described a serious injury to the knee. He had found the small bone in the leg, about three inches from the knee, broken (the fibula). It was a transverse break. He treated it, and gave a history of the case. He discovered difficulty in her walking as a result. He was asked what would cause this difficulty. He explained, and then he said, from his knowledge of the injury, and from the statements that he had received from his patient, that in cold weather she felt increased pain in the leg, he could form an opinion as to what it was due to. He was then asked, in effect, to say what it was due to, to which there was an objection that he was not authorized to express an opinion; and he answered that the pains were due *969to rheumatic conditions, which are extremely common in all cases of bruises or breaking of bones. Then he was asked: “What do you say, doctor, as to the continuance of these conditions after the injury,—as to the probability of their continuing?” This was objected -to as incompetent, etc., and was overruled, with an exception to the ruling, and the doctor answered that they would probably continue a long while; that the age of a person makes a difference; the older the patient, the longer the pains are likely to last, for younger people outgrow these things; the younger they are, the less years they have down to a child. The defendant claims this was error, under the ruling in Strohm v. Railroad Co., 96 N. Y. 305. In that case it was held that, to authorize evidence as to apprehended consequences, it must be such as, in the ordinary course of nature, are reasonably certain to ensue. Consequences which are contingent, speculative, or merely possible are not proper to be considered in estimating the damages, and may not be proved. Here the witness stated, upon reasonable premises, his conclusions as to the probable results of this injury. His conclusions were not based upon mere speculation, as was the evidence condemned in the case cited. We find no reversible error in the reception of this testimony.
The remaining point to be considered is that the plaintiff was, as a matter of law, guilty of contributory negligence; that, if the step was in the condition which her witnesses testified it was, she should have seen it as she got in upon the step in the morning, and had an opportunity to do so. She testifies that she did not notice the condition of the step; that when she got in in the morning she put her hands upon the sides of the wagon, and had no difficulty in helping herself in. This might have occurred, and still the step be loose and defective. She was attending to getting in the wagon, and not to inspecting the steps. She had the right to rely upon the assurance that the defendant had given her that the step was reasonably safe. The question of contributory negligence was for the jury, and they have found with the plaintiff. The trial court, upon the question of inspection, charged that the defendant was only required to make an ordinary inspection of the wagon. This was quite as favorable for the defendant as he could ask for.
Upon the whole case, I find no reversible error, and the judgment and order should be affirmed.