Argued before VAN BRUNT, P. J., and BARRETT and DANIELS, JJ.
Root & Clarke, for appellant. Christopher Fine, for respondent.

DANIELS, J. The verdict was recovered for the sum of $10,000 for damages sustained by the plaintiff occasioned by a fall on Broadway, in the city of New York. As the testimony was given upon the trial, it tended to establish the fact that in the afternoon of the 30th of December, 1885, she endeavored to take passage upon a car, proceeding upon the street railway in Broadway, in a northerly direction. Her testimony was to the effect that the car had stopped, and she had placed her right foot on the lower step, and her hand on the last rail, and her left hand on the rail of the car at the dash-board, and was in the act of raising the other foot, when the car was started with a jerk, and she was thrown violently to the ground, and received the injuries for which the verdict was rendered. Other testimony was given in the case tending to confirm the correctness of her statements that the car had stopped at the time she endeavored to take passage upon it, and that she was injured by being thrown down as the car was afterwards started. This evidence was controverted by that which was given by the conductor, and other witnesses examined on the part of the defendant. But the conflict, in this manner created, presented no more than a question of fact for the jury, upon the determination of which their verdict must be accepted as conclusive. There was no such preponderance in either direction as would permit the court to interfere with their decision as to the effect of the evidence.

Further evidence was given on behalf of the plaintiff tending to establish the fact that a fracture of the upper part of the hip bone was caused by her fall; that she was disabled by the fracture, and for months confined to her bed; that she suffered great pain during the time, and continued to do so when the trial took place; and that it was probable that she would never recover from the consequences of the injury. As to this subject, there were differences between the witnesses; but, like the other, they were of such a nature as to require them to be considered and decided by the jury. As the evidence presented the case, it was clearly one of fact, to be decided by them.

At the close of the evidence, it was submitted to the jury, with a clear statement of the law applicable to the theories in this manner presented by the proof. And the jury were left without embarrassment to apply the legal rules applicable to the disposition of the case, in their investigation and decision. But requests were made on behalf of each of the parties for directions to the jury, in the main included in the charge as it was first given. They were not wholly accepted or followed as they were presented by the plaintiff's counsel, and exceptions were taken by him to the refusal of the court to accede fully to his propositions. Neither these requests, nor the exceptions themselves, should have been allowed to form any part of the case upon the appeal, for the reason that the verdict and judgment were in the plaintiff's favor; and needless additions of this description have no other effect than to confuse and obscure the points really to be presented for the decision of an appellate court. The same is true as to the rulings against the plaintiff upon objections taken by evidence. They should have formed no part of the case, and no injustice would now be done if the case should be sent back to be resettled for the purpose of having these objections excluded from it; and, if this practice is to be adopted and followed, that will undoubtedly be the remedy for its correction. But without giving that direction on this occasion, as these defects were not noticed at the time of the argument, it will be as well to consider whether either of the exceptions taken in behalf of the defendant is well founded. An exception was taken on its part to the charge "that there is no evidence from which the plaintiff might be found guilty of negligence, if the car did not entirely and fully stop."

This was explained by the court by the statement "that there is no evidenceby which you could charge the plaintiff with contributory negligence, because the defendant is not guilty of negligence, unless the car stopped, and was started on again." This direction restricted the right of the plaintiff to recover to the fact that the car had stopped at the time when she endeavored to go upon the platform; and if that were the truth, and all she did was to endeavor to pass up the steps upon the platform, and she was thrown off by the sudden starting of the car, there would be no reason for imputing negligence to her in what she did. But the court proceeded further, upon the consideration of this subject, relieving the case from all possible criticism in this respect; for the further charge was given that she would be guilty of negligence contributing to the injury if she attempted to board the car, while it was in motion, by grasping the handle of the rear dash-board with her left hand, and placing her right foot on the step, and then raising her left foot to the step. If these were found to be the facts, then the charge was "that the defendant is entitled to a verdict, because there is no evidence that the defendant was negligent." Upon this subject, the further directions were given that it was for the jury to determine whether or not the car started before she had a chance to get on board; and whether started by the driver or conductor does not make any difference. And these directions placed the case under the dominion of the jury as favorably as the defendant was entitled to have that done, under the evidence given upon the trial. For it has been held by the court, and the rule appears now to be settled, that it is not, as a matter of law, always negligence, even for a person to attempt to pass upon a street-car while it is in motion. When it is proceeding at a low rate of speed, the act may safely be performed; subjecting the person performing it to no imputation whatever of carelessness or imprudence. Eppendorf v. Railroad Co., 69 N. Y. 195. It was by no means a controlling circumstance whether the car was started up by the act of the conductor or the driver, if it was done, while the plaintiff was endeavoring to pass upon the platform. For, by whomsoever it may have been put in motion, it was a negligent act to perform it in such a manner as to throw the plaintiff from the step, as that was described by herself and the witnesses sworn in her behalf. The defendant also excepted to the statement made by the court that the defendant assumed the obligation to use the utmost care to carry passengers safely to their destination. But this has been so often sanctioned and repeated by the authorities as to become an elementary proposition in the law; and the plaintiff was entitled to this degree of protection in endeavoring to go upon the car of the defendant. As the case was presented to the jury, the latter was no legal ground for complaint.

Upon the cross-examination of the witness Joseph Creamer, who was a physician, he was asked whether an examination of the person of the plaintiff, to which he had testified, was in his opinion a full and fair examination. This was objected to. The objection was sustained, and the defendant excepted to the exclusion of the evidence. The question was a fair and proper inquiry addressed to the witness, and the defendant was entitled to have it answered. Curtis v. Gano, 26 N. Y. 426; Laros v. Com., 84 Pa. St. 200-209. And, if this ruling remained as it was in this manner made, the defendant would clearly be entitled to a reversal of the judgment. But it did not, for the witness Simon J. Walch, who was another physician present at the examination, was asked the question, "Was that as accurate a measurement as it was possible to make, in your judgment?" and he answered, "I think it was." And this seems to have reference to the time concerning which the inquiry was made of the witness Creamer, for he states that Dr. Walch was there, and Dr. Kelly made the measurement. This evidence of the witness Walch was in no manner contradicted or controverted by any other testimony given upon the trial; and it consequently gave the defendant the benefit of the proof in such

Lomer

a manner as to render it the duty of the jury to accept and follow it. v. Meeker, 25 N. Y. 361; White v. Stillman, Id. 541. This was substantially a correction of the error made upon the trial, and the exception to the preceding ruling was thereby deprived of its force and effect.

Another witness sworn on behalf of the plaintiff testified that she saw her about four months after the injury; that she was then lying on her back, and seemed to be suffering great pain. This was objected to by the counsel for the defendant, but the court held it to be competent, and the defendant excepted. No ground was assigned for the support of this objection; and for that reason the defendant cannot now, for the first time, sustain it by affirming it to be the opinion, only, of the witness. But evidence of this description is ordinarily more than a mere opinion, for the reason that emotions caused, either by distress or pleasure, usually exhibit themselves through the countenance; and the indications of their existence are as well defined and accepted by experience as when they may be expressed in the language of the person affected by them. It is not possible for a witness to describe either of these emotions by the employment of language in such a manner as to give the evidence of their existence to a jury; and, when that is the fact, then the conclusion of the witness from the appearance of the person has been allowed to be stated. This was done in Adams v. People, 63 N. Y. 621, as to the condition of a person's eye-sight; and so it was in People v. Eastwood, 14 N. Y. 562, as to the existence of the fact of intoxication; and this was followed in McCarty v. Wells, 4 N. Y. Supp. 672. And, where the appearance of an individual may be such as to indicate the suffering of great pain, no good reason exists which would justify the exclusion of a statement of the fact by a witness to whose observation the person may have been subjected.

The evidence was sufficient to present the inquiry to the jury whether the injury sustained by the plaintiff was or was not permanent in its effect. The legal rule upon this subject was considered in Johnson v. Railway Co., 4 N. Y. Supp. 848. And the evidence upon the trial of this action was sufficient to place that inquiry within the deliberation of the jury; for, if the plaintiff was entitled to recover, she was not only entitled to indemnity for the injury she had sustained up to the time of the trial, but for such as would probably afterwards follow as a necessary consequence of the accident. Filer v. Railroad Co., 49 N. Y. 42.

The refusal of the plaintiff's counsel to permit her to be subjected to the examination of physicians, as that was proposed at the trial by the defendant, is sustained by Roberts v. Railroad Co., 29 Hun, 154. And it was entirely competent for the plaintiff to prove by her own evidence that her power of motion was not what it previously had been. And no error arose out of the rulings excluding the answers to the questions as to whether the plaintiff complained of the conduct of the driver or conductor. What she did complain of was very clearly evinced by her evidence, leaving no ground for any misunderstanding upon this subject. And whether she had anything to do with employing any particular counsel was a fact of not the slightest importance upon the trial. What should be the amount of the verdict was an inquiry committed to the good sense and experience of the jury; and in the amount awarded by them they did not transcend the rule sanctioned by any of the authorities. No sufficient reason appears for interfering, either with the judgment or the order; and both the judgment, and the order denying a new trial, should be affirmed.

BARRETT, J. I concur in the result, and also in Mr. Justice DANIELS' opinion, with a single exception. I do not think that the exclusion of the question put to Dr. Creamer was error. The examination as to which he was being interrogated was by the defendant's physicians. Dr. Creamer had al

ready testified that he had not given a thought to the question of the fairness of this examination, that he only saw part of the measurements which were made, and that he was very indifferent to what took place. Manifestly, then, there was no foundation for an accurate opinion upon the subject; and, upon this ground, the exclusion of the question might fairly be justified. But, further, the doctor's opinion was thus asked, not as to the result of his own or of another physician's examination, but whether an examination not then in evidence, and which might never be in evidence, was full and fair. In other words, the cross-examining counsel desired in this manner to herald his forthcoming testimony with a certificate of its value from the plaintiff's witness. Still further, even if the ruling in question were erroneous, I cannot agree that after so thorough and exhaustive an examination as was given to Dr. Creamer, covering minutely every feature of the injury and of the treatment, a new trial should be awarded for an error which could not possibly have prejudiced the defendants.

VAN BRUNT, P. J., concurs.

PEOPLE ex rel. HOGAN v. FRENCH et al., Police Commissioners.

(Supreme Court, General Term, First Department. November 7, 1889.) MUNICIPAL CORPORATIONS-DISCHARGE OF POLICEMAN-DISCRETION OF COMMISSIONERS. Where it is admitted that a member of the police force has been intoxicated, it is solely within the judgment of the police commissioners whether the excuse offered is such as to relieve him from the penalty of dismissal. BARRETT, J., dissenting. Certiorari to review the action of the police commissioners in discharging the relator, Matthew Hogan, from the force.

Argued before VAN BRUNT, P. J., and DANIELS and BARRETT, JJ. John M. Tierney, for relator. William H. Clark, Corp. Counsel, (W. L. Turner, of counsel,) for respondents.

VAN BRUNT, P. J. Although we are of the opinion that there is no evidence contained in the record before us which in the slightest degree justifies the terribly severe punishment inflicted upon the relator, yet, under the rules laid down by the court of appeals in the case of People v. French, 110 N. Y. 494, 18 N. E. Rep. 133, we have no power whatever to redress the wrong. The relator was concededly intoxicated, and whether an excuse was offered which relieved the relator from the effects of the fact seems to have been, under the rule above stated, a matter solely within the judgment of the police commissioners. That the excuse presented was one which should have relieved the relator, a man who had been upon the force for 16 years, and who is spoken of by his superior officer as a first-class man, and who had during all these years an excellent record, from the severe punishment inflicted upon him, cannot be questioned. The evidence in this case shows that the occurrence which led to the relator's removal occurred during the strike upon the railroads; that he had been riding on the cars for five days to protect them from the strikers; that on the day in question he had eaten nothing; that about 3 o'clock he complained of being sick, when the sergeant took him off the car at 3:30 on account of his sickness; that the sergeant advised him to report sick. But the relator replied that, in view of the trouble, it would look mean on his part to do so. The sergeant says that at 4:30 he saw the relator, and he was perfectly sober. The relator, feeling badly, then took a drink of brandy and peppermint, and it intoxicated him. The evidence further shows that the relator had not taken a drink of liquor before in 16 years, and upon this state of facts the severest punishment possible was meted out to him, and he was, for this offense, clearly excusable under the circumstances, dismissed from the force.

Notwithstanding the manifest injustice which has been done we do not see any way in which we can afford any relief. The writ must be dismissed, with

out costs.

DANIELS, J., concurs.

BARRETT, J., (dissenting.) I cannot think that this case comes within the general rule laid down for our guidance in People v. French, 110 N. Y. 494, 18 N. E. Rep. 133. It is an extreme case of misfortune, but not, as I humbly conceive, of guilt. Hogan frankly acknowledged that he was intoxicated, but intoxication is not necessarily, and under all circumstances, guilty. The surroundings may always be considered. We cannot, it is true, under the authority referred to, review the excuse given for a guilty act, but we may look at the attendant circumstances to ascertain whether the act was in fact guilt. Here the charge was conduct unbecoming an officer, in that the patrolman was so much intoxicated as to be unfit for duty. Would such a charge be established by proof that a brave and faithful officer, fainting under injuries received in the performance of his duty, had been given a stimulant by a physician, or even by a lay passer-by, and that he had been affected thereby? Would the intoxication thus caused be deemed conduct unbecoming an officer, and would the medical or samaritan incident be treated as a mere excuse to palliate proved guilt? It seems to me not. The officer's condition would, of course, be prima facie evidence that it was produced by a guilty act. But surely a man may possibly come under the influence of liquor by an innocent act. In the present case the uncontradicted testimony pointed conclusively to Hogan's innocence-not as to the effect, but as to the cause. He had no appetite for liquor. The drink in question was not even a passing indulgence. It was resorted to to sustain nature, and to enable this sick, famished, and worn-out officer to continue the struggle which even his sergeant had humanely relieved him from. Where he procured the stimulant, whether it was at an apothecary's or at a dram-shop, does not appear. It was certainly, however, but a single glass, and it affected him almost immediately. The determination that this isolated act of physical need was conduct unbecoming an officer, and should be punished by his practical destruction, ought not, in my judgment, to be sustained. It was an unjust, ruthless, and cruel sentence; just such a sentence as subdivision 5, § 2140, Code Civil Proc., was designed to give us authority to remedy. The proceedings of the commissioners should be reversed, and the relator reinstated.

BRADLEY V. LEAHY et al.

(Supreme Court, General Term, First Department. November 7, 1889.) JUDICIAL SALE-RIGHTS OF PURCHASER-FALSE REPRESENTATIONS.

A purchaser of land at a judicial sale, on the faith of a representation in the terms of sale that a mortgage to which the land was subject would not be due until 18 months thereafter, relying on that interval to effect a sale of the land before the maturity of the mortgage, will be relieved from his purchase where it appears that proceedings for foreclosure were already in progress, and were completed before he received his deed, and he did not hear a statement of the fact of such proceedings, alleged to have been made publicly at the time of the sale.

Appeal from special term, New York county.

Action by James N. Bradley against Mary A. Leahy and others for the foreclosure of a mortgage. At the sale thereunder John J. Burchell became the purchaser of the land, and he now appeals from an order denying his motion to be relieved from the purchase, and granting plaintiff's motion to compel him to complete the same.

Argued before VAN BRUNT, P. J., and DANIELS and BARRETT, JJ.