[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 481
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 482 Through undue zeal on the part of the counsel for the plaintiff this case was overtried, and hazardous chances were taken by inviting rulings, which require a reversal of the judgment. We will call attention to a few of the errors, trusting that upon another trial counsel will realize that the true interest of a client is rarely advanced by a verdict resting on error.
The only specific allegations of negligence set forth in the complaint are that "the defendant operated a derrick and bucket which swung, raised and lowered in and about said premises and, in utter disregard of its duty to the plaintiff, failed to supply a sufficient number of servants to operate said apparatus; failed to furnish or supply signalmen at various points about said premises to warn plaintiff of the approach of said apparatus or any of its parts; failed to furnish or supply other signalmen or appliances of any kind whatever to warn plaintiff of the approach of said apparatus or any of its parts; failed to supply sufficient electric lights, or any other kind of light in the night time to enable plaintiff to see about said premises with reasonable clearness, so that said premises were dark." Although these were simply allegations of negligence at common law, the plaintiff also alleged the service of a notice under the Employers' Liability Act, but without setting forth any fact to bring the case within the reach of that statute.
Upon the trial the first evidence offered by the plaintiff was a notice claimed to conform to said act. The defendant objected to it as incompetent and immaterial, as having nothing to do with the case and as wholly insufficient in that it did not properly show the cause of the accident or comply with the requirements of the statute. The objection was overruled, an exception taken and the notice read in evidence. It stated the time and place of the injury with fullness and accuracy, but the only attempt to state the cause of the injury was as follows: "Said accident was caused by the failure of the said Foundation Company to provide proper protection for the said Simpson in his employment, and as a result *Page 485 thereof said Simpson was struck by a bucket, which was being used for hoisting purposes, causing him to fall into a pit whereby he sustained serious injury."
In submitting the case to the jury the court read sections one and two of the statute and charged that "This action is brought under this act and this law applies to the evidence in this case and you must apply this law to the evidence." The court further instructed the jury to decide whether the defendant provided a safe place and exercised proper care to keep it safe, and refused to charge that there was no evidence to warrant a finding that there was any defect in the ways, works or machinery furnished by the defendant which in any way contributed to the accident. Exceptions were duly taken to these rulings.
1. The notice did not comply with the Employers' Liability Act because it failed to adequately describe the accident, and did not notify the defendant of any cause of injury that came within the provisions of that statute. It is simply a notice of common-law negligence, which was not required, and is not a notice to bring the case within the enlarged liability imposed by the legislature. There is no notice of any defect in the condition of the ways, works or machinery, or of the negligence of any person exercising superintendence with the authority or consent of the employer. It alleges a failure to provide "proper protection," but does not point out the kind of protection needed, nor the nature of the work in which the plaintiff was engaged, nor "indicate what the real, producing trouble in this case was as distinguished from many others which might have existed." While it says that he was struck by a bucket and caused to fall into a pit, it does not state what he was doing, why the bucket struck him, where he fell from, or under what circumstances he fell. Upon reading the notice the employer could not tell whether something broke, or whether the accident was caused by some defect in machinery, or through careless operation, or the failure to give warning, or through any particular act of omission or commission. The allegation of a failure to provide proper *Page 486 protection is too general, for that is simply an allegation of negligence, with "no statement which fairly and completely described the cause of the accident," as we held was necessary inFinnigan v. New York Contracting Co. (194 N.Y. 244, 248). In a later case we said "that the accident should be so identified that the master's attention is called to the exact occurrence," and that the notice "must reasonably describe the accident." (Logerto v. Central Building Co., 198 N.Y. 390, 394.) In that case the notice stated at length all the possible statutory grounds of liability, but the only allusion to the accident or cause of injury was in the statement that "as a result of all which certain earth, stone and material was caused and permitted to fall upon and seriously injure me." We held that this did not reasonably and sufficiently describe the accident or occurrence.
It is not enough to specify the time and place of the accident, although that would guide the employer to some extent in making an investigation, which is one of the objects of requiring notice. The statute says that "the cause of the injury" must also be stated, and this means that the accident should be so described that a person of ordinary intelligence who knew nothing about it could understand how it happened. Notice that the plaintiff was struck by a bucket and knocked into a pit is good as far as it goes, but it was necessary to further state, however informally, how the bucket came to strike him, or, in other words, in some reasonable way to describe the occurrence as it actually took place.
2. Even if the notice had been adequate, the evidence did not warrant the submission of the case to the jury as one governed by the Employers' Liability Act. As was well said by Mr. Justice MILLER below: "The master was liable, not for a defect in the ways, works or machinery, nor for the failure to furnish a safe place in which to work, but if at all, for not furnishing a signalman. The evidence respecting the light, the absence of bell or other signal, and the obstructions of the engineer's view only relate to the defendant's duty to furnish a signalman and to the question of the plaintiff's contributory negligence." *Page 487
The plaintiff pleaded and proved only an action at common law, and while he alleged the service of a notice he did not prove the service of one sufficient to bring the case within the statute. Moreover, he furnished no evidence of statutory liability, even if the complaint and the notice had conformed to the act and hence the case was submitted to the jury upon an erroneous theory. The court refused to charge that there was no evidence upon which negligence could be predicated under the act, and the jury were told to apply the act although only a common-law liability was shown. This constituted reversible error, which was not cured by the instruction that the plaintiff "must stand or fall on his complaint," for the jury must have understood from the charge as a whole that the complaint set forth a cause of action under the act. The subject was so thoroughly considered below that we regard further discussion as unnecessary. (Simpson v. Foundation Co., 132 App. Div. 375.)
3. The next evidence received after the notice was introduced was given by the plaintiff himself, who, after testifying that he was thirty years of age at the time of the accident, was asked if he was married, and, under objection and exception, he answered: "I am married. I was married on the 27th day of June, 1896. My wife was living at that time and she is living to-day." He was then asked if he had any children, and, subject to objection and exception, he answered that he had four.
When an action is brought by the personal representatives of a decedent to recover damages for causing his death by negligence, evidence that he had a wife and children is competent, because the measure of damages provided by the statute which authorizes the action is "just compensation for the pecuniary injuries resulting" to the wife and next of kin. (Matter of Meekin v.B.H.R.R. Co, 164 N.Y. 145, 147; Code Civ. Pro. §§ 1903, 1904.) When, however, the injured person survives the accident and brings the action himself, the damages recovered belong to him and are allowed only for the loss which he has personally sustained. In such a case evidence *Page 488 that he had a wife and children ordinarily has no bearing on the subject of damages, and is incompetent for any purpose.
We have thus stated the general rule in relation to the admissibility of such evidence. In this case, however, evidence that the plaintiff was married, although incompetent when received, was subsequently made competent through testimony given by the plaintiff and his physician tending to show that as the result of the accident he had lost all sexual power. It was proper that the jury in estimating the damages should consider the fact that although married and still a young man, he was rendered incapable of enjoying marital rights. Thus, under the peculiar circumstances of this case, evidence of marriage and that his wife was still living was competent, but it is an exception to the general rule.
I am personally of the opinion that evidence that the plaintiff had begotten children prior to the injury was also competent under the extraordinary facts of this case, because he had the natural right to possess unimpaired the power of procreation during the normal period. The fact that he had children was evidence that he possessed the power before the accident. It must be presumed that his children might be a source of comfort and support in his old age, and, hence, loss of the power bore on the question of the pecuniary damages he had sustained, independent of the policy of the law and the interest of society in the perpetuation of the species. It is not a complete answer to say that the law presumes the previous existence of the power, for it is not reversible error to prove a fact which the law presumes.
A majority of my associates, however, are of the opinion that the evidence relating to children was incompetent, and that it was brought in to aggravate the damages. They think that the power is presumed without proof, and that the real object of the attorney for the plaintiff is shown by the fact that the evidence was clearly incompetent when offered, and yet he did not state that he intended to prove anything which might make it competent. *Page 489
4. The plaintiff, apparently for the purpose of showing that the defendant was not misled by the statutory notice, called his brother, who testified that he had an interview with Mr. Brown, the general superintendent of the defendant, in the presence of a man to whom he was introduced by Brown. The witness was asked what Brown said when he introduced this gentleman, and, under objection and exception, he answered, "I will introduce our representative, Mr. Frank V. Johnson." He was next asked, "Who did he say this gentleman, Frank Johnson, was?" Subject to objection and exception, he answered, "From the insurance company." The defendant's counsel then insisted that it was improper to ask a question which the attorney knew would elicit an improper answer, and asked the court to withdraw a juror and declare a mistrial. The court did not rule upon the motion, but made a distinct ruling that the evidence should stand, and the defendant again excepted.
Subsequently another witness for the plaintiff testified to an interview with Mr. Brown, and stated that two attorneys were present at the time. He was asked, "Where did they tell you they were coming from?" The answer was, "Travelers' Insurance Company, I think they said." There was no objection or exception to this question, and no motion was made by either party to strike out any of the evidence relating to the subject of insurance.
Later on in the trial after one Riley had testified for the defendant, a paper purporting to be a statement made by the witness was offered in evidence to contradict him. The last words of the paper were: "I made a statement to a representative of the insurance company, but I neither read it or signed my name." The defendant objected to the admission of the paper upon the ground, among others, that it was an effort "to introduce in evidence and to give to the jury certain information which is improper, incompetent and immaterial," and in this connection counsel particularly called the court's attention to the last clause in the statement as quoted above. The objection was overruled and the defendant excepted. *Page 490
The plaintiff's counsel claims that the answers to the questions objected to were unexpected to him, and that he intended to show simply that the men who were present at the interviews represented the defendant as attorneys. The circumstances indicate, however, that one object of the questions was to suggest to the jury that the defendant was insured in an accident company in order to induce them to give a larger verdict. Disregarding the questions not objected to, the objections to the other questions were not only overruled, but the answers were allowed to stand by an independent ruling made after it was known what the answers were.
If the answers were unexpected, as claimed, it was the duty of the plaintiff's counsel himself to move to strike out the evidence and to ask the court to instruct the jury to disregard it. Although warned by objection and exception, he had brought it into the record, and when he knew that it was not what he expected, but something highly improper, he should have lost no time in getting it out of the record and doing his utmost to correct his mistake. A prompt withdrawal of the evidence by the counsel for the plaintiff would go farther toward correcting the evil than any motion made by the attorney for the defendant. While there was no proof in this case that the defendant was insured, by suggestion and indirection the jury were given to understand that such was the fact and the result, apparently, is reflected in the verdict.
Evidence that the defendant in an action for negligence was insured in a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict. (Cosselmon v.Dunfee, 172 N.Y. 507; Loughlin v. Brassil, 187 N.Y. 128,135; Hordern v. Salvation Army, 124 App. Div. 674, 676;Haigh v. Edelmeyer M.H. Elevator Co., 123 App. Div. 376,380; Manigold v. Black River Traction Co., 81 App. Div. 381,384.)
In Hordern v. Salvation Army (supra) Mr. Justice INGRAHAM *Page 491 said, "The question as to whether or not under any circumstances evidence of this kind is competent has been so often before the court and so uniformly decided that there can be now no question that under no circumstances is it proper to ask such a question. The only possible ground of asking the question is to suggest to the jury that as the defendant would sustain no damage by a verdict against it, they should give to the injured plaintiff compensation to which under other circumstances he would not be entitled. * * * As counsel in cases of this kind have been so often admonished as to the impropriety of suggesting either by way of argument or by way of questions to the jury, or in any other way, that the defendant was protected by insurance, it seems to be unnecessary to say more than that such a suggestion in the presence of the jury will render any verdict that has been obtained by the plaintiff valueless, as a violation of the rule will require a reversal of the judgment." (p. 676.)
5. Statements, both verbal and written, made out of court by certain witnesses for the defendant, were received for the purpose of affecting their credibility. These statements involved the opinion of the witness, although not an expert, that signalmen were necessary in order to protect the men working on the platform and in the pit. The opinion of a witness upon the vital question upon which the case turned and which was for the jury to decide, was clearly incompetent. As, however, some of the evidence was competent and the objections were not specifically addressed to the part that was improper, we do not hold that the rulings involved reversible error, but simply call attention to the subject by way of suggestion.
Many other rulings made during the trial are challenged by the appellant, but in an opinion of reasonable length it would be impossible to discuss them all, and we have said enough, as we hope, to secure, upon the new trial which it is our duty to order, greater care in offering and receiving evidence and a closer observance of the principles of law. *Page 492
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, HAIGHT, WERNER, HISCOCK and COLLIN, JJ., concur.
Judgment reversed, etc.