Moore v. Westchester Electric Railroad — 115 A.D. 62

Majority

p. 62

Charles C. Moore, Appellant, v. Westchester Electric Railroad Company, Respondent.

Second Department,

October 5, 1906.

Headnote

Evidence — negligence — driver injured by collision with street car — when evidence as to condition of contents of van admissible to show speed of car. . ”

In an action by a driver to recover for personal injuries caused by a street car running into the rear of his furniture van, it is reversible error to exclude tlie evidence of one who examined thé contents of the .van shortly after the- accident as to “ the condition of that furniture in regard to being injured,” where the speed of the street car, as hearing, upon defendant’s negligence, is in issue, for the - condition of the furniture tended to show the force -of the impact and the speed of the car.

p. 63

Appeal by the plaintiff, Charles C. Moore, from a judgment of the County Court of Westchester county in 'favor of the defendant, entered in the office of the clerk of the county of Westchester on the 27tli day of May, 1905, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.

■Sydney A. Syme, for the appellant.,

Edward D. O’Brien [James L. Quackenbush with him on the brief], for the respondent.

The action is to recover damages for the negligent operation of one of the defendant’s street cars, by reason of which a van upon which the plaintiff was riding, driven in the car tracks along which the street car was approaching, was struck from the rear by the car with such violence as to throw the plaintiff from his seat and inflict serious injuries upon him.

Carbrey, a witness called by thé plaintiff, was the owner of the van and horses injured in the collision. He arrived at the scene of the accident very soon after it took place, and describes the injuries to the van and to the front part of the street car. It appears that the van was loaded with furniture. He was asked on direct examination : “ Q. What was the condition of that furniture in regard to being injured?” The question was objected to, the objection was sustained, and the plaintiff excepted.- In view of the fact that the principal questions in the case, and especially that as to the defendant’s negligence and the speed of the car, were sliarp’y contested and presented close questions of fact for the jury's consideration, we think that the manifest mistake in excluding Ibis question attained to the dignity of reversible error. The evidence was important for the purpose of showing the force of the impact, and inferentially the speed of the car, at that time. The questions of fact were so sharply contested and evenly balanced when- the case went to the jury that it is not unreasonable to suppose that this error would have affected the result, especially as there appears to be no' other evidence touching the condition of the furniture in

p. 64

the van. The judgment must, therefore, be reversed and a new trial ordered.

Hirsohbbrg-, P. J., Jenks, Rich and Miller, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs' to abide the event.