through the hole, and the dislodgment of the rock around it, would have been sustained by the evidence.

Under such circumstances, the learned court was requested, and refused, to charge "that unless the defendants knew, or the defendant James Hallinan knew, that the rock on the south side of the holeon the south side of the crack running through the lower hole-was loose at the time of an attempt to split the rock with the wedge, that then there can be no recovery"; also "that the defendant James Hallinan, and consequently the defendants in this case, cannot [could not] be guilty of negligence if James Hallinan did not know of the existence of the crack running through the lower hole." By such refusal to charge upon an assumption of facts which might have been found by the jury, the trial justice necessarily permitted the jury to find that the defendants, through the one there engaged, ought to have known of the alleged condition, even if they did not; that, in the exercise of the necessary care and diligence, the latter should have examined and detected the presence of the conditions which are said to have led up to the accident. We think that, under all of the circumstances surrounding the accident, this imposed upon the defendants a higher degree of responsibility than was proper.

The case was submitted upon the theory, as we understand it, that the jury might find the defendants liable because of the personal negligence of the defendant in striking the rock. We think that, practically and in effect, that was the charge made. An attempt to apply to the solution of the case those principles which relate to the furnishing to the employé of a suitable place in which to work seems somewhat remote. Upon the theory of the plaintiff, the place at which he was put to work was safe enough in the absence of the personal acts of one of the defendants. In the absence of those acts, it is insisted that the accident would not have happened, and therefore the narrow, specific, practical question is whether the defendants were guilty of negligence, upon such an assumption of facts as was made in the requests to charge already referred to. As already suggested, these requests leave to be determined the question whether, before defendant did or permitted the hammering, he ought to have assumed that the lower hole might have been broken into, and should have examined for such conditions. The two holes were six feet apart, and the bed rock in that locality in which the holes were located were rock. There is no evidence to indicate that the explosion of such a blasting charge as was used was liable to create a fissure running through the hole containing the charge which did not explode. So far as we are able to discover, there is no evidence to indicate that a man exercising ordinary care and caution and prudence and foresight, even in the use of such explosives as dynamite, ought to have foreseen the conditions which by plaintiff are said to have arisen. Apparently, the result of the refusals to charge and of the findings by the jury was to hold that, simply because a blast had exploded in one place, the defendants ought to have known that there would be a crack in a solid rock six feet away. We think that the enforcement of such a rule of liability upon the evidence in this case would practically amount to making the defendants insurers against 86 N.Y.S.-59

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all possible contingencies, and of requiring them to anticipate and foresee and look out for conditions which no man, in the exercise of ordinary care, would be required to anticipate.

Various other questions are suggested in the case, which we do not regard as essential to decide, in view of the conclusions reached upon the branch discussed. The judgment and order should be reversed.

Judgment and order reversed, and new trial granted, with costs to appellants to abide event, upon questions of law and fact. All concur; MCLENNAN, P. J., and SPRING and STOVER, JJ., upon the additional ground that the verdict was against the weight of evidence.

MENNELLA v. METROPOLI AN ST. RY. CO.

(Supreme Court, Appellate Term. February 24, 1904.)

1. COURTS-INTERPRETER-APPOINTMENT.

At common law, and in the absence of statute, the court has the right. and it is its duty, to appoint an interpreter, when necessary, without the consent of the opposite party.

2. PERSONAL INJURIES-ACCIDENT TO CHILD-CONTRIBUtory NegligENCE-AGE OF CHILD-ABSENCE OF EVIDENCE-ESTOPPEL TO RELY ON.

In an action for personal injuries to a child defendant cannot contend, in support of a judgment for dismissal, that the evidence showed that plaintiff was guilty of contributory negligence, and that there was no testimony as to his age which would exonerate it from the consequences of such negligence, where defendant itself prevented the introduction of the testimony of the child's mother as to its age by its refusal to consent to the employment of an interpreter.

3. TRIAL-DISMISSAL OF COMPLAINT-FAILURE TO PROCURE INTERPRETER-REMANDMENT TO CALENDAR.

In an action for injuries to a child, where sufficient evidence had been given to carry the case to the jury on the question of defendant's negligence, it was error for the court to dismiss the complaint, and especially on the merits, before plaintiff had presented all his evidence and closed his case; and, if the presentation of such evidence was rendered impossible by failure to obtain the services of an interpreter, the trial should have been suspended, and the case remanded to the calendar.

Appeal from City Court of New York, Trial Term.

Action by Vinconse Mennella, an infant, by his guardian, etc., against the Metropolitan Street Railway Company. From a judgment of the City Court for defendant, plaintiff appeals. Reversed. Argued before FREEDMAN, P. J., and MacLEAN and DAVIS, JJ.

Rosario Mazzio, for appellant.

Bayard H. Ames and F. Angelo Gaynor, for respondent.

FREEDMAN, P. J. At the trial plaintiff's complaint was dismissed before he had finished his case. The plaintiff and his parents are Italians, and the principal reason which led to the dismissal was that the plaintiff had failed to have an unobjectionable Italian interpreter in court, through whom his mother, who did not understand English, could be examined. The first man proposed for that purpose

appeared to be a friend of the attorney for the plaintiff, and was to be called as a witness. Assuming that he was properly rejected, the plaintiff's attorney proposed at least two other men whom he claimed were competent, and they were rejected without any examination into their competency for the sole reason that the defendant refused to consent to either of them, the trial justice placing his ruling in that respect upon the ground that there was no official interpreter attached to the court, and that in the absence of one he could not compel the defendant to accept a person proposed by the plaintiff for that purpose. This was error. At common law the court has not only the right, but also the duty, to make such appointment where the necessity exists. Am. & Eng. Ency. of Law (2d Ed.) vol. 17, pp. 27–31, and cases there cited. Statutes for the appointment of official interpreters in certain courts exist to enable said courts to proceed promptly with their assistance, but the duty to appoint as occasion requires remains irrespective of statute. A poor litigant as well as a rich one is entitled to his day in court, and to a respectful hearing; and, in so far as he cannot present his case except through an interpreter, it is right to be heard in that way. It would be a denial of justice to make such right depend upon the consent of the defendant. The plaintiff, an infant, brought this action to recover damages for personal injuries sustained by being run down by a car of the defendant. His mother, although not an eyewitness to the accident, was evidently called to show his age, and what kind of an infant he was. The defendant seeks to uphold the judgment on the ground that the testimony of two witnesses to the accident who were produced by the plaintiff showed that the plaintiff was guilty of contributory negligence. Assuming for a moment that such claim would be tenable if the plaintiff had been an adult, it might, under the circumstances of this case, have become untenable if the plaintiff had been permitted to show that he was at the time a child of such tender years that, as against him, a different rule should be applied; and consequently the testimony of his mother, if taken, might have carried the case to the jury upon this point. The defendant, who prevented this testimony, cannot urge that without it there is not a scintilla of evidence in the case as to the age of the plaintiff. Under the circumstances disclosed, and sufficient evidence having been given to carry the case to the jury upon the question of defendant's negligence, the court below erred in dismissing the complaint, and especially in dismissing it upon the merits before the plaintiff had presented all his evidence and closed his case. If it was impossible to obtain the services of a competent interpreter, the trial should have been suspended and the case remanded to the calendar.

The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

DAVIS, J., concurs.

MacLEAN, J. (concurring). Two exceptions only appear in the case. One is worthless because to the exclusion of an indefinite question already answered; the other, which is probably good, being to

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the dismissal of the complaint when there was some evidence to be submitted to the jury. În view, however, of the animadversions in the brief for the plaintiff (appellant), it is proper to remark that it was the duty of her attorney and counsel not only to acquaint himself with the facts necessary to support the infant's cause of action, but also to see to it that that evidence would and could be presented. If, as he apparently well knew, the witnesses could not speak the vernacular of the court, it was his duty to secure the presence of an interpreter, not only linguistically competent, but also qualified to interpret the statements of the witnesses in a manner to command the confidence of the jurors and of the court. That the person proffered as interpreter is friendly to the parties, and even that he is friendly to one of the parties, is not cause of his exclusion, but goes to the credibility of his interpretation. People v. Ramirez, 56 Cal. 533, 38 Am. Rep. 73. The function of an interpreter is much like the function of an expert, and, like any other expert, the interpreter's qualification must be shown either by his own oath or by the oath of some one else. If not a sworn officer of the court, he must be sworn in each case, and his qualifications duly established. Proffering several persons to the court and jury as interpreters, the counsel for the plaintiff was not at the pains to have it appear, other than by his own unverified statements, that the person so proffered was either competent, qualified, or fit. One person was accepted by the defendant's counsel, and served for a part of the day, but did not appear on the following day to complete the cross-examination. After irritating disappointment and delays, the justice struck out the evidence of the witness, whose cross-examination could not be completed, and dismissed the case. For this course there was much excuse, if not justification. Inasmuch, however, as there was some evidence which might have been submitted to the jury, it is a hardship to allow the case of an infant plaintiff to fail because of the lack of preparation or skill of the attorney to whom its guardian has confided the case.

The judgment should be reversed, and a new trial ordered, with

out costs.

(91 App. Div. 374.)

CLINTON V. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Division, Second Department. March 4, 1904.) 1. CARRIERS - PASSENGERS-STREET RAILWAYS- CONTRIBUTORY NEGLIGENCE— BOARDING MOVING CARS.

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Whether plaintiff, who was injured while attempting to board one of defendant's trolley cars while it was in motion, but had slackened in speed for him to get on, was guilty of contributory negligence, was a question for the jury.

2. SAME-ACTIONS-VERDICT-PRESUMPTION.

In an action for injuries to a passenger attempting to board a trolley car the verdict must be deemed to have been based on a finding which inIcluded the hypothesis suggested by the court in its charge which would sustain the claim of negligence.

1. See Carriers, vol. 9, Cent. Dig. § 1369.

3. SAME-INSTRUCTIONS.

In an action for injuries to one attempting to board a moving street car, a charge that, if the car slowed down to permit plaintiff to get on, it was for the jury to say whether the motorman saw him, and slowed down in response to his signal, and then started without giving him a reasonable time to get safely on the car, and that, if the motorman saw plaintiff getting on, but nevertheless started off, it would be negligence, but if the motorman did not see him getting on, and did not see his signal, and had no reason to apprehend that he was going to get on, although he had slowed down and started off again, that would not be negligence, was sufficiently favorable to defendant.

Appeal from Kings County Court.

Action by William Clinton against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

I. R. Oeland, for appellant.

Edward J. McCrossin, for respondent.

HIRSCHBERG, P. J. The plaintiff was injured while attempting to board one of the defendant's trolley cars on Sterling Place, in the borough of Brooklyn, in the middle of the block between Classon and Washington avenues. The block is a long one, but at about the point where the plaintiff signaled the motorman to stop the car there is a station where the cars are accustomed to stop for the purpose of receiving passengers. The accident occurred at 20 minutes to 7 o'clock on the morning of October 1st. The plaintiff testified that he gave the motorman the signal when the car was about 25 feet distant; that the speed of the car was slackened so that it was going as slow as a walk, and so that he could step on, but that just as he stepped or attempted to step on the car at the rear platform the motorman applied the power with full force, causing the car to go ahead suddenly and swiftly, thereby causing his injuries. His version of the Occurrence was corroborated in its essential features by the testimony of apparently disinterested witnesses. The motorman testified that he saw the signal, but that his car was behind time; that he called to the plaintiff, "Next car behind; take your time!" and that he did not stop the car until he received a bell from the conductor. Whether or not he slowed up the car or slackened its speed before he got the bell he did not state. No claim is made that the plaintiff was chargeable with contributory negligence, the points relied on by the appellant relating only to the question of the defendant's negligence and to certain refusals of the trial judge to charge as requested upon that question. The question of the plaintiff's contributory negligence was one of fact, and was fairly submitted to the jury. It is well settled that it is not ordinarily negligence, as matter of law, for a person to get upon a street car while it is in motion. Eppendorf v. B. C. & N. R. R. Co., 69 N. Y. 195, 25 Am. Rep. 171; Moylan v. The Second Avenue Railroad Company, 128 N. Y. 583, 584, 27 N. E. 977; Morrison v. B. & S. A. R. R. Co., 130 N. Y. 166, 29 N. E. 105; Distler v. Long Island R. R. Co., 151 N. Y. 424, 45 N. E. 937, 35 L. R. A. 762;