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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

PETER NORMAN, Appellant, v. MICHAEL J. DOWD and RICHARD T. MASLEN, Respondents.

Negligence-failure to make a recess intended to receive an iron column large enough to receive it — injury to one putting in the column from brick falling from the wall as a consequence thereof.

In an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendants, it appeared that the latter undertook to prepare recesses in a brick wall, which should be high enough to receive iron columns which the plaintiff and the iron workers associated with him had been employed to place in such recesses; that the defendants failed to make one of such recesses of a sufficient height, and that, in consequence thereof, the top of a column which the plaintiff and his companions were endeavoring to place in position, struck the brick work at the top of the recess, causing several bricks to fall upon and injure the plaintiff.

The plaintiff testified that he thought "everything was safe to go on;" that the space afforded by the recess looked wide enough and that this was the reason he went on.

Held, that the questions of the defendants' negligence and of the plaintiff's freedom from contributory negligence were properly submitted to the jury; That the defendants having undertaken to prepare the recesses, it was their duty to ascertain the sufficiency of each recess by actual measurement, if necessary, before the iron workers were called upon to insert the columns therein;

That it could not be held, as a matter of law, that the plaintiff was guilty of contributory negligence in assuming that the defendants had made the recess long enough to receive the columns or in failing to notice that it was too short, it appearing that the defect of the recess in this respect was not plainly manifest.

APPEAL by the plaintiff, Peter Norman, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 3d day of April, 1903, setting aside a verdict in favor of the plaintiff on the ground that there was no evidence given showing the plaintiff's freedom from contributory negligence. The action was brought to recover for injuries received by the plaintiff through the displacement of bricks in a vertical recess in a wall into which the plaintiff and others were engaged in placing an iron column, which, being longer than the recess, struck some loose brick in the wall above it, causing it to fall on the plaintiff.

Conrad Saxe Keyes, for the appellant.

Harrison F. Johnson and Frank V. Johnson, for the respondents.

SECOND DEPARTMENT, JULY TERM, 1903.

(Vol. 86. PER CURIAM:

We think that this case was correctly tried and properly submitted to the jury and that the verdict of $250 in favor of the plaintiff should have been allowed to stand. There was evidence that the defendants undertook to prepare recesses in a brick wall, which should be high enough to receive the iron columns which the plaintiff and the ironworkers associated with him were employed to place therein ; that they failed to make one of these recesses of sufficient height; that in consequence of this insufficiency, the top of a column, which the plaintiff and his companions were endeavoring to put in place, struck the brickwork at the top of the recess, thus causing the fall of several bricks, and that these bricks in falling struck the plaintiff and produced the injuries of which he complains.

This proof made out a case of negligence against the defendants. They knew or ought to have known the exact height of the columns. Having undertaken to prepare the recesses, it was their duty to ascertain the sufficiency of each recess by actual measurement, if necessary, before the ironworkers were called upon to insert the column therein. It was obvious, from the nature of the work, that a deficiency in the height of the recess, perhaps not readily discernible by the eye, might result in precisely such an accident as that which occurred in this case, when the ironworkers were engaged in trying to place in the recess one of these heavy columns.

We are also of opinion that the evidence on the question of contributory negligence was such as to make it proper to leave that question to the jury. The plaintiff testified that he thought "everything was safe to go on," and the space afforded by the recess looked wide enough, and that this was the reason he went on. While engaged in the performance of duties that naturally absorbed his entire attention and required the exercise of all his energy, it cannot be held as matter of law that the plaintiff was guilty of contributory negligence in assuming that the defendants had made the recess long enough to receive the column, or in failing to notice that it was too short, when the defect in this respect was not plainly manifest,

The order setting aside the verdict should be reversed.
Present — GOODRICH, P.J., BARTLETT, WOODWARD and JENKS, JJ.

Order of the Municipal Court setting aside verdict reversed, with costs, and judgment reinstated.

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App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

ELIZABETH CONNOLLY, Respondent, v. THE BROOKLYN HEIGHTS

RAILROAD COMPANY, Appellant.

Verdict not set aside, where the defendant claims that the jury were unduly influ

enced by persistent efforts to introduce incompetent evidence, the verdict not being excessite or the plaintiff's right to recover doubtful.

Where, upon an appeal by the defendant in a negligence case from a judgment

entered upon a verdict in favor of the plaintiff, the defendant contended that the jury were unduly influenced by the conduct of the plaintiff's counsel in endeavoring to place before them the contents of a letter describing the circumstances of the accident, written by the plaintiff's son-in-law to the defendant, the day following the accident, which letter was finally excluded as incompetent, the Appellate Division refused to reverse the judgment upon this ground, it appearing that the verdict was not excessive and that there was not so great a weight of evidence in favor of the defendant's theory of the accident as to create

a doubt as to the justice of the verdict. WOODWARD, J., dissented.

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 24th day of November, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk's office on the 5th day of December, 1902, denying the defendant's motion for a new trial made upon the minutes.

1. R. Oeland and George D. Yeomans, for the appellant.

Stephen C. Baldwin, for the respondent. GOODRICH, P. J.:

The plaintiff claims that she was injured while in the act of alighting from a car of the defendant's. Her contention is that she signaled the conductor, that the car stopped and that she commenced to get off the car, but that before she had reached the ground the car started with a sudden jerk, throwing her down, breaking her ankle and causing other injuries. She recovered a verdict for $3,000, and from the judgment entered thereon the defendant appeals.

Upon the evidence the jury were justified in finding a verdict for the plaintiff. They could have easily believed either the evidence

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SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86. of the plaintiff or that of the defendant. I do not find any such preponderance of evidence in favor of the defendant as to justify a reversal of the judgment.

The appellant contends, however, that the conduct or the plaintiff's counsel in endeavoring to get before the jury the contents of a letter describing the circumstances of the accident, written by the plaintiff's son-in-law to the company the next day after the accident, and after, as she testified, she had related to him the circumstances under which it occurred, tended to influence a verdict in favor of the plaintiff.

The following is the record, the defendant's local claim agent being under recross examination : “Q. Did you have in your possession a letter from a Mr. Armour, the son-in-law of the plaintiff ? A. There a letter sent. Q. In regard to this case ? A. There was a letter sent to our main office, and it was referred to me and I Q. Where is it? A. Well, I turned it in when I turned the papers in at the main office. Q. Have you got the letter ? Mr. Oeland : Yes. [Defendant's counsel produces letter.] Mr. Baldwin : I offer this letter in evidence. [Defendant's counsel objects to a letter written by a relative.] Mr. Baldwin : It is a letter from her son-in-law written a day after, stating the whole acts of this case, although they now claim that this lady went from the car to the curb before she fell down. I have the letter in answer to this signed by Mr. Greatsinger, who refers the matter to his claim department. I offer them both in evidence. The Court: I have some doubt about it. Mr. Baldwin : This is a letter written the very day after this accident, apprising the company of the exact nature of the accident, and we have the answer from the president to that letter. Now, as I understand their position, they are going to claim that this lady walked away from the car and fell herself after the car had gone half-way across Hancock street, and fell in the gutter, and despite that she has brought an action against this railroad company, seeking to fasten liability upon the railroad company, and that in face of the fact that I have here the letter of her son-in-law, who wrote to this company the very day after the accident, the moment that mother-in-law returned to his house, stating the nature of the claim and corroborating exactly her present statement. [Objected to as inadmissible ; objection sus

App. Div.]
SECOND DEPARTMENT, JULY TERM, 1903.

tained; exception taken. The letters referred to are marked for identification one and two.] The Court: All that he said, which discloses the character or contents of the letter, is to be excluded and is to be disregarded by the jury."

In Cosselmon v. Dunfee (172 N. Y. 507), the court, while affirming a judgment for the plaintiff in a negligence case, took occasion to reprehend the practice of counsel in attempting to introduce incompetent evidence, saying (p. 508), "where the trial court or Appellate Division is satisfied that the verdict of the jury has been influenced thereby it should, for that reason, set aside the verdict."

If the verdict had been excessive, which is not claimed by appellant's counsel, or if there had been so great a weight of evidence in favor of the defendant's theory of the accident as to create a doubt of the justice of the verdict, I should recommend reversal, but a careful reading of the evidence does not bring me to any such conclusion.

The judgment should be affirmed.

HIRSCHBERG and HOOKER, JJ., concurred in result; WOODWARD, J., dissented.

Judgment and order affirmed, with costs.

In the Matter of the Judicial Settlement of the Account of THE NEW YORK LIFE INSURANCE AND TRUST COMPANY, as Executor, etc., of CHARLES SAXER, Deceased, Appellant, Respondent. WILLIAM P. FIERO, Special Guardian of the Infants CHARLES SAXER MCCAFFREY and Others, Respondent, Appellant.

Will — gift of the residuary estate in trust — authority of the executor to sell stocks and bonds included in the residuary estate.

The will of a testator devised his residuary estate to his executor upon the following trust: "To collect, take and receive all the rents, income, interest and profits thereof, and to pay over therefrom to my sister-in-law, Sarah Healy, the sum of five hundred dollars yearly during her natural life in equal half yearly payments, the first payment to accrue at my death, and to pay over the rest of said rents, income, interest and profits unto my daughter Irma McCaffrey in equal half-yearly payments for and during her natural life, and at the death of my said sister-in-law and my daughter to divide and distribute my said estate,

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