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and 121 New York State Reporter C. N. Bovee, Jr., for appellant. Louis Oppenheim (J. Stewart Ross, on the brief), for respondent. WOODWARD, J. There is no dispute that on the 14th day of September, 1901, between the hours of 4 and 5 p. m., the plaintiff, Charles Steinacker, a truck driver, was seriously injured by being caught between the pole of the wagon in his cliarge and some boxes on, a wagon standing in a line in front of his team, and it is substantially agreed that the plaintiff got down from his seat upon the wagon and went to his horses' heads for the purpose of adjusting the bridle of the off horse, and that he was injured by the team in the rear of plaintiff's wagon starting up and coming in contact with the latter, forcing plaintiff's team forward. It seems that the plaintiff, with a load of goods, was seeking admission to Pier 26, North river; that he had taken his place in line, with other teams, some ahead and some behind him, and was waiting his turn to get inside. While thus waiting, moving forward as space was made in front, one of plaintiff's horses rubbed his bridle partially off, and the plaintiff got down from the wagon, passed in front of the horses, and reached up to adjust the bridle on the off horse. While thus engaged his team was forced or stepped forward, catching him between the pole and the wagon in front of him, producing a hernia, which subsequently resulted in a gangrenous condition of one of his legs, rendering amputation necessary. The evidence indicated that there was but little space between the teams, and that there was the usual crowding for positions, and there was some evidence that the defendant was the owner of the team and wagon directly in the rear of the plaintiff's wagon, and that the driver undertook to draw out of the line, and that in so doing his wagon struck the rear of plaintiff's wagon, producing the forward movement which resulted in the accident. The trial resulted in a verdict for the plaintiff of $5,000, and, from the judgment entered, appeal comes to this court.

It is urged on appeal that the plaintiff was guilty of contributory negligence, and we are free to say that, had the jury taken this view of the question, its conclusion might easily be sustained. Taking into consideration the conduct of drivers of freight vehicles, knowing the disposition of mankind to crowd for position in every walk of life, a jury might very properly have held that the plaintiff had not exercised that degree of care which a reasonably prudent man would or should have used under the circumstances. And yet it was peculiarly a question of fact to be determined by the jury, for the evidence quite fully disclosed all of the facts and circumstances surrounding the accident. The plaintiff had a right to go where he went for the purpose of adjusting his bridle; he had a right to assume that those in the rear of his wagon would exercise reasonable care not to collide with his wagon; and if there had been no collision, in the view which the jury took of the evidence, the injury to the plaintiff would not have resulted. The plaintiff, in going into this space of two or three feet between his wagon tongue and the rear of the wagon in front of him, assumed, as a matter of law, only the dangers which were known and obvious to him, which would include the danger of his own team, left without a driver, moving forward upon him, and not the danger of some third person disregarding his duty; and it was for the jury to determine whether the plaintiff, by this conduct, had exercised that degree of care which he was called upon to use under the circumstances. Assuming that the plaintiff's team did not move forward of its own accord—and the jury has determined that it did not-in the absence of the defendant's negligence the accident would not have occurred; and even though it might be said that the plaintiff was negligent in going into this position, if that negligence did not operate to produce the accident, it was not contributory negligence. It may have been careless of him, considering the things that might happen; but the accident which did happen was not caused by his presence in that position, but by the negligent conduct of the defendant's driver, and upon this is predicated the liability.

While the evidence of the defendant's negligence is not as clear as might be desired, we are unable to say that there was not sufficient evidence to support the finding of the jury. It is true, perhaps, as suggested by the appellant, that there is no direct evidence to show that the defendant's driver had any notice of plaintiff's position and danger; but there was evidence of the circumstances surrounding all of the parties, and, in the absence of special conditions, it may be assumed that the driver of a wagon in the immediate rear could, by the use of his eyes, have discovered that the plaintiff was not on the wagon and in control of his team, and this would have been notice to him that the situation required a higher degree of care than would be necessary if the plaintiff was in his seat on the wagon, and would impose the duty of acting accordingly. A slight exertion would have discovered the position of the plaintiff, and an element of negligence might be properly inferred from a failure on the part of defendant's driver to make this observation, in view of the obvious danger of running into a team which was without a driver upon the wagon or in control of his horses.

Perhaps the most stubbornly contested point in the case was the identity of the defendant's driver and team. The defendant made a strong effort to show that it had no team at this dock at the tiine of the accident, attempting to account for all of its teams and drivers upon that day, and the jury might have found, from the evidence, that the plaintiff had failed to establish that the defendant was liable for the accident. But there was evidence in support of the plaintiff's theory; evidence of a persuasive character, and of sufficient weight to support the verdict. The case was submitted to the jury upon a charge which, as concluded, was without objection or exception by either party, all of the requests of the defendant having been charged, and we see no reason for disturbing the judgment.

The defendant urges that error was committed in permitting certain questions to be answered by the doctor who amputated plaintiff's leg. He had testified to the amputation, and that after the amputation "I made an examination to determine what had caused the gangrene of the leg. I had something done. I did not do it myself. It was done under my supervision.” Asked, “What was it?" the witness started to reply, and was interrupted by defendant's counsel, who asked: "Did you see it done? A. I saw the results. Q. Were you present when it was done? A. No. Mr. Bovee: Then I object to it. The Court: He said he saw the results. If he saw the sections, he may answer. Mr. and 121 New York State Reporter Bovee: I object to it as incompetent, and except." The doctor then replied: "I had a section made of the amputated part, and this dissection disclosed a clot in the lower part of the femoral artery.” He explained that this was a clot of blood, and was asked where it was located. Defendant's counsel objected to this as incompetent "unless the doctor knows. The Court: Of course, he is asked for his knowledge. (Objection overruled. Defendant excepts.)" The witness then answered, giving the location of the clot. The last objection was not absolute; it was only "unless the doctor knows"; and the evidence was admitted upon the theory that the doctor did know, for he testified positively after the court had stated that the question asked only for the knowledge of the physician. We think it was competent for the physician who made the amputation to direct an assistant to dissect the leg after it was removed, and to testify as to the results which he saw. It was not necessary that he should have been present during the time the dissection was actually in process; it was enough if he knew the facts to which he testified.

We have examined the further exceptions in this case, but without finding reversible error.

The judgment and order appealed from should be affirmed, with costs. All concur.

ROSS v. BAYER-GARDNER-HIMES CO. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. PLEADING-AMENDMENT-CONDITIONS.

As a condition for the service of an amended complaint, plaintiff should be required to pay all costs in the action except a trial fee for a trial at which a juror was withdrawn, such payment having been imposed on the

plaintiff as a condition for allowing the withdrawal of the juror. Appeal from Special Term, New York County.

Action by Charles R. Ross against the Bayer-Gardner-Himes Company. From an order granting motion for leave to amend complaint, defendant appeals. Modified and affirmed.

Argued before VAN BRUNT, P. J., and IATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Charles B. Blair, for appellant.
John Aitken, for respondent.

PER CURIAM. The order should be modified by requiring the plaintiff, as a condition for the service of the amended complaint, to pay to the defendant all costs in the action, except a trial fee for the trial at which a juror was withdrawn, the court having imposed the payment of such trial fee upon the plaintiff as a condition for allowing the withdrawal of the juror, and, as thus modified, the order should be affirmed, without costs of this appeal.

(92 App. Div. 251.)

FISHER MALTING CO. v. BROWN. (Supreme Court, Appellate Division, First Department. March 11, 1904.)

1. TRIAL-PROSECUTION-UNREASONABLE NEGLECT-PRIMA FACIE CASE.

Under Code Civ. Proc. $ 822, providing for the dismissal of the complaint where plaintiff unreasonably neglects to proceed in the action, and General Rules of Practice, No. 36, providing that, where plaintiff fails to bring a jury issue to trial, defendant, at any time after younger issues shall have been tried in the regular order, may move for the dismissal of the complaint, the failure of plaintiff to do anything to bring the action to trial for upwards of three years, younger issues having in the meantime been tried in the regular order, makes out a prima facie case of unreasonable neglect to proceed in the action, and throws the burden of ex

cusing the same on the plaintiff. 2. SAME-EXCUSES-SUFFICIENCY.

A statement, in an affidavit in opposition to a motion to dismiss the complaint for unreasonable neglect in pressing trial, that the action is on the general calendar, and that notice of trial has been served on behalf of plaintiff, does not tend to excuse the neglect, where it is not denied that the notice of trial, without which, under Code Civ. Proc. & 977, the action cannot be placed on the calendar, was served after the motion was made to dismiss.

Appeal from Special Term, New York County.

Action by the Fisher Malting Company against Edward A. Brown. From an order denying a motion to dismiss the complaint, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERŠON, O'BRIEN, and LAUGHLÍN, JJ.

Philip A. Rorty, for appellant.
C. F. Goddard, for respondent.

McLAUGHLIN, J. This action was commenced in May, 1900, by the personal service of a summons and complaint, and issue was joined therein by the service of an amended answer on the 21st of August, 1900. No further steps appear to have been taken until a motion was made, which resulted in the order appealed from to dismiss the complaint upon the ground that the plaintiff had unreasonably neglected to proceed in the action. The plaintiff's attorney then noticed the cause for trial, and filed a note of issue. The motion was denied, and defendant appeals.

The fact is uncontradicted that after issue had been joined the plaintiff, for upwards of three years, did nothing whatever to bring the action to trial, and in the meantime younger issues have been tried in their regular order. These facts, under section 822 of the Code of Civil Procedure and rule 36 of the general rules of practice, made out a prima facie case of unreasonable neglect to proceed in the action. Unreasonable neglect having been shown, the burden of excusing the same was thrown upon the plaintiff, but in the affidavit used in opposition to the motion no explanation whatever was either given or attempted. The statement is there made that the action is upon the general calendar, and that a notice of trial has been served on behalf of the plaintiff for the first Monday of November, 1903, but the fact is not and 121 New York State Reporter denied that the notice of trial was served after the motion was made to dismiss, and the action could not have got upon the calendar until such notice was served. Section 977, Code Civ. Proc. These acts, therefore, do not tend in the slightest degree to excuse and have no bearing whatever upon the neglect for which the defendant asked to have the complaint dismissed. The facts being uncontradicted, and no explanation given for the delay, we think the motion should have been granted. The defendant fairly established a prima facie case of neglect on the part of the plaintiff to proceed with the action within the section of the Code and rule above cited. Seymour v. Lake Shore & M. S. R. Co., 12 App. Div. 300, 42 N. Y. Supp. 92; Zafarano v. Baird, 80 App. Div. 144, 80 N. Y. Supp. 510.

It follows, therefore, that the order appealed from should be reversed, with $10 costs and disbursements, and the motion to dismiss granted, with costs of the action, and $10 costs of the motion. All concur.

of the part of thefendant faitlay, we thi

(92 App. Div. 249.)

MCMANN V. BROWN. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. TRIAL-NOTE OF ISSUE-TIME OF FILING.

Under Code Civ. Proc. & 977, providing for the service of notice of trial, and the filing of a note of issue by the party serving the notice, a note

of issue filed before the cause has been noted for trial is ineffectual. 2. SAME-DELAY IN SECURING TRIAL-DISMISSAL OF COMPLAINT-EXCUSE.

Under Code Civ. Proc. $ 822, providing for the dismissal of the complaint where plaintiff unreasonably neglects to proceed in the action, and general rules of practice No. 36, providing that, where plaintiff fails to bring a jury issue to trial, defendant, at any time after younger issues shall have been tried in the regular order, may move for the dismissal of the complaint, mere "inadvertence" is not an adequate excuse for a delay of over three years, nor does it furnish any basis for the exercise of judicial discretion in refusing to dismiss the complaint.

Appeal from Special Term, New York County.

Action by Thomas R. McMann against Edward A. Brown. From an order denying a motion to dismiss the complaint, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PAT. TERSON, O'BRIEN, and LAUGHLIN, JJ.

Philip A. Rorty, for appellant.
C. F. Goddard, for respondent.

MCLAUGHLIN, J. Defendant appeals from an order denying a motion to dismiss the complaint on the ground that plaintiff has unreasonably neglected to prosecute the action. The facts upon which defendant claimed he was entitled to have the complaint dismissed are similar to those stated in Fisher Malting Co. v. Brown (decided herewith) 87 N. Y. Supp. 37, and it is therefore unnecessary to restate them. In the affidavit of the plaintiff's attorney used in opposition to the motion the statement is made that a note of issue was filed on the 22d day of August, 1902, but the fact is not denied that no notice

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