supposed or alleged to be founded upon facts, which facts have not appeared in evidence"; "if it be an hypothesis, it is not upon material and relevant facts to this inquiry"; "that there is no evidence before the court on which the witness is competent to give opinion upon which he can found an answer, and as indefinite, because other necessary facts are not stated with it,"-specifying those facts. A consideration of this objection shows that it is equivalent simply to claiming that the hypothetical question was faulty either in being based upon facts that did not appear, or as omitting facts which had been made to appear by the testimony. Neither of these objections was well founded. In framing hypothetical questions to be put to a witness, counsel are required to confine themselves to facts which are proven, or which the jury might find, or any facts which might be assumed from the evidence already in the case, and which are pertinent to the theory they are attempting to uphold. Dilleber v. Insurance Co., 87 N. Y. 79. But counsel are not called upon, in framing a hypothetical question, to present all the facts which have been made to appear. If they keep within the facts and fair inferences from them, they have done all that can be required; and the hypothetical question thus framed is not objectionable. question omits facts which are material and pertinent to the inquiry, that is a subject of comment to the jury, and, so far as those facts are omitted, the weight to be given to the testimony elicited by the question is impaired; but that does not at all affect the competency, however much it may affect the conclusions the jury are to draw from the answer. An examination of the question which was objected to will show that every fact assumed in the question might have been found by the jury from the evidence which had already been made to appear. The objection taken was properly overruled. No other objection was made to the form of the question, and, indeed, none stated, except that the witness was not competent to answer, which was clearly unfounded. In view of the fact that the only objection taken to the form was the one considered, we are not called upon to examine the question in any other respect. If there is a well-founded objection to the form, and that objection is not taken, but the objection which is taken is not well founded, the court does not err in overruling the specific objection, and assuming that any other which might have been taken, but which was not, was waived. A careful examination of the testimony in this case has led us to conclude that the verdict was not against the evidence. As we have already seen, there was sufficient to warrant the finding of negli gence. There is evidence to support the finding that the plaintiff received injuries, and that those injuries caused the lamentable condition to which she was subsequently reduced; and, while in some respects the evidence is unsatisfactory. vet we cannot say that it was not such as the jury should have received and acted upon. There was great delay in bringing the action, but the plaintiff explains that by saying that she was advised to defer doing so until it could be seen just how far her injuries would prove to be serious; and that explanation was a plausible one, and whether it could be accepted or not was clearly a question for the jury. If they be and 82 New York State Reporter. lieved that the injuries to the plaintiff were as serious as her evidence made it appear that they were, it is quite clear that the verdict was not excessive. For all these reasons, we conclude that the judgment and order were correct, and should be affirmed, with costs to the respondent. All concur, except VAN BRUNT, P. J., dissenting. In VAN BRUNT, P. J. I dissent from the opinion of the court in this case. I do not think that the rule laid down by the opinion in regard to the hotel appliances of the defendant's steamer is correct. No more care is required in respect to those appliances than is required of an hotel keeper in taking care of his guests upon land. that respect the relation of the traveler to the carrier is precisely the same as that of the guest of an inn to the innkeeper. In addition, however, to board and lodging, the carrier affords the passenger transportation; and, in respect to the appliances for transportation, the carrier is bound to exercise the utmost care and diligence. CASPER v. DRY-DOCK, E. B. & B. R. CO. (Supreme Court, Appellate Division, First Department. December 10, 1897.) STREET RAILROAD-DEFECTIVE TRACK-INJURY TO TRAVELER. A foot passenger was injured, in crossing a city street, by a loose rail of a surface-car track. It appeared by several witnesses that the track had been carefully inspected that morning, and appeared all right until shortly before the accident occurred, when the absence of two spikes was seen, and at once reported to the track master, who had it repaired promptly and within an hour after hearing of it, but not until the accident had happened. The locality was always crowded with heavily loaded trucks, which might have sprung the rail. The track was comparatively new, and was well laid. Held, that the facts rebutted any presumption of defendant's negligence. Williams and O'Brien, JJ., dissenting. Appeal from trial term. Action by Sigmund R. Casper against the Dry-Dock, East Broadway & Battery Railroad Company. From a judgment entered on a verdict, defendant appeals. Reversed. Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O'BRIEN, and INGRAHAM, JJ. John M. Scribner, for appellant. INGRAHAM, J. This action was brought to recover damages for injuries sustained by the plaintiff in crossing the track of the defendant's road, at the corner of Lispenard street and Broadway, about 12 o'clock on February 2, 1895. The plaintiff's account of the cause of the accident is that he was walking on the westerly side of Broadway, towards Canal street, about noon, or a little after, on the 2d of February, 1895. That as he was crossing Lispenard street on the cross walk he had passed the southern rail of the track of the defendant company, and as he passed the northern rail of the track "the heel of my shoe was pinioned down by a track which threw me over on this side,-on the right side; threw me back. * * I stepped with the inside the instep, this part here-of the shoe on the track, and this heel (the right heel) was pinioned between the track and the paving stones. The track was loose, and the spikes were out, and, when I put my weight on this rail, the rail went down, and held my heel down so I was swung back on my side. I say the track was loose, and the spikes were standing out. I mean the spikes protruded. I saw two spikes sticking up, * * I should judge, three inches,-two and a half to three inches. Pretty near all out,-maybe the whole length; I could not exactly tell." It further appeared by the testimony of the plaintiff and the defendant's witnesses that this corner of Broadway and Lispenard street was a very crowded corner, a stream of people going in both directions constantly, and a stream of trucks and wagons using this street over this piece of track upon which the plaintiff alleges he was injured. About the time of the accident several trucks were in the street. There is no evidence to show, nor proof of facts from which the inference could be drawn, that this track had been loose for any period of time prior to the occurrence testified to by the plaintiff, nor that this track had remained loose, or that these spikes protruded, for any time prior to the plaintiff's injury; but we have the fact that the rail was in such a condition that when a man, weighing in the neighborhood of 179 pounds, stepped upon it, it was pressed down so that the spikes protruded above the rail two and a half or three inches, and this in a locality where there was a constant stream of heavily loaded trucks and wagons passing, any one of which striking these spikes would bend them off or force them down. The testimony of the plaintiff as to the condition of the track was uncorroborated. On behalf of the defendant, the track master of the road was called, who testified that about 9 o'clock on the morning of February 2d, the day in question, he visited this place; that he went over all the road on that day to see if any salt or sand was required at the curves; that he noticed this curve at the corner of Broadway and Lispenard streets for that purpose; and that at that time there was no indication of the spikes being out, or that the track was not in perfect condition. He testified that if the spikes had been out or the track loose he would have noticed it, as his attention was particularly directed to the curve of the track to see if any salt or sand was required. The inspector of the defendant's road testified that at half past 10 o'clock he visited this corner, remained there half an hour, watched during that time the operation of the cars upon this track, and, while not making a particular examination of the track itself, he said that he would have noticed if the rail had been loose or if the track was out of repair; that about half past 10 he left this locality to look after some other portion of the road, and returned about 11 o'clock; that immediately upon his return he noticed that two spikes had in some way been drawn out of the rail, so that the spikes themselves were absent; that he at once wrote to the track master, and gave it to one of the conductors of the car that passed, informing him of 48 N.Y.S.-23 and 82 New York State Reporter. the absence of these spikes; and that this was shortly after 11 o'clock. It also appeared from the testimony that it was possible for a heavily loaded truck in the street to catch the flange of the wheel in the track, and by lifting it up loosen the spikes so that they would come out; and, as before stated, the evidence is uncontradicted that at this point there was a constant stream of heavily loaded trucks and wagons using this street. It further appeared that this note of the inspector was delivered to the track master about noon, or shortly after; that the track master immediately sent two workmen with the necessary spikes and materials to repair the track, and that the track was repaired and in good order before 1 o'clock; that the track master visited the locality about 1 o'clock in the day, and found the track repaired. It further appeared by the testimony of the policeman stationed at that corner that it was his duty to watch the condition of the track in this locality, and report to his superiors if the track became out of order; that he was on duty at the time of this accident, as he had been on duty before on that day and on previous days, that being his regular place; and that he had never noticed any difficulty with the track at this point or that it was out of repair. The track was 4 years old, had been well laid, and there is no evidence to show that it was in any way worn out or required any renewing; the evidence being that the ordinary life of a track of this kind is from 10 to 12 years. After all the testimony was in, the defendant asked the court to direct a verdict for the defendant upon the ground that no negligence on the part of the defendant had been proven, and upon the further ground that there was not a particle of evidence on the part of the plaintiff showing that the alleged defect in this track had existed for a space of half a minute prior to the accident in question, if it ever existed. This motion was denied by the court, to which the defendant excepted. The court then charged the jury that, “in order to recover, the plaintiff must prove to your satisfaction, by a preponderance of evidence, that the accident happened solely through the negligence of the defendant"; that "negligence is want of ordinary care, and ordinary care is such care as is fairly proportioned to the danger to be avoided or risk to be incurred, judging by the standard of common prudence and experience"; and that the "negligence of the defendant is the gist of this action, and the plaintiff in this action is not entitled to recover unless the jury find that the defendant was actually guilty of negligence in the construction or maintenance of the track in question." This statement of the law in, the charge seems to be correct, as applied to an action of this character. In Worster v. Railroad Co., 50 N. Y. 205, Church, C. J., says: "We are to assume that the defendants had a lawful right to lay their tracks in the street where the injury occurred, but this right carries with it the obligation to lay the tracks in a proper manner, and keep them in repair, and, if an injury occurs by reason of neglect in either of these respects, the defendants are liable in damages. The duty of remedying the defect was affirmative and absolute. Notice to the defendants of the defect was not necessary. It was their duty to know it. It was patent, and an omission to know that such a defect existed was prima facie negligence as much as an omission to repair after notice. The facts tended to prove that the defect had existed for some days. * The presumption of knowledge arises from the existence of the defects themselves. The plaintiff was only required to show that the injury resulted from the road being out of repair, and, if circumstances existed showing absence of negligence, it was for the defendant to prove them. The presumption of negligence was complete when it appeared that defects existed and an injury was caused thereby." In Schild v. Railroad Co., 133 N. Y. 449, 31 N. E. 327, Gray, J., in delivering the opinion of the court, says: "The defendant was authorized and had the right to put down its rails in and upon the street, and was under no liability, by reason of anything in the grant from the common council, to keep the street pavement between its tracks in repair. But it was under an obligation, which is necessarily implied as to every use of a highway, so to construct and to maintain its tracks as that, by the exercise of a reasonable care and supervision with respect to them, no danger might be occasioned to the public in its use of the highway. The highway or street used for rails must be maintained, as nearly as possible, as fit for the use of the public who travel on foot or in vehicles as it was before, having due regard to the necessity for the rails being there.” * * The liability upon the defendant is thus one of care to keep its rails in such repair that persons using the highway will not be injured. The defendant, however, is not an insurer. It is not absolutely liable to all persons using the highway in which its rails are laid, but it is bound to exercise care in their construction and maintenance to prevent such a condition of the highway as would cause injury to those rightfully using it. This obligation of the defendant is twofold: First, properly to construct its track; and, second, after so constructed, to maintain it in a safe condition; and liability must be predicated upon a neglect to perform this duty. In this case there is no evidence to show that the track was not a properly constructed track, presenting any greater inequality in the street than would be presented in any street paved in an ordinary manner with stone, or that the plaintiff sustained any injury in consequence of improper construction. Was the evidence, taken as a whole, sufficient to show that the defendant was negligent in keeping this properly constructed track in repair, or did the evidence in favor of the defendant so strongly preponderate that the finding of negligence was so clearly against the weight of evidence as to make it our duty to set the verdict aside? The plaintiff's account is that in crossing this track his foot caught in the rail; that he fell; and that while upon the ground he noticed this condition of the spikes, as before stated. Under the rule announced in the cases before cited, this made out the plaintiff's prima facie case; and, if there were any facts to show that the condition of the rail at the time was not the result of the defendant's want of care, it was for the defendant to show it. As tending to show that the defendant was not negligent in not keeping this track in repair, it was testified to that the track had been examined by the track master of the defendant road at 9 o'clock that morning, without the defective condition being discovered, and again by the inspector between 10 and half past 10; that at 11 o'clock, when the inspector returned, the absence of these two spikes was noticed, and word was at once sent to the track master of that fact, when it was at once |