Ryan v. New York & Queens County Railway Co.

Majority

p. 11

Patrick J. Ryan, Respondent, v. New York and Queens County Railway Company, Appellant.

Second Department,

June 5, 1908.

Headnote

Evidence — intoxication—proof of habits.

On the question as to whether plaintiff was drunk when he stepped from a trolley car, evidence of his habits of life and whether he had been seen drunk before is inadmissible.

Appeal by the defendant, the Hew York and Queens County Railway Company, from a judgment of the Municipal Court of the city of Hew York in favor of the plaintiff, rendered on the 4th day of October, 1907.

Anthony J. Ernest, for the appellant.

John Hetherington, for the respondent.

This is' an action to recover for personal injuries due to the alleged negligence of the defendant in starting its car before the plaintiff, who had signaled for a stop, had had an opportunity to alight. There was a clear conflict of evidence as to whether the car had stopped or not when the plaintiff stepped off, and we are of the opinion that the weight of evidence» is not against the conclusion reached by the jury. The only other suggestion for a reversal of this judgment is the alleged error of the trial court in excluding evidence. Defendant’s witness had testified to the effect that the plaintiff was drunk, or appeared to be drunk, at the time of the accident, and that he stepped off the car in spite of the motorman’s warning not to do so. The witness was then asked as to whether he had seen the plaintiff drunk on othen occasions, and this was, on objection, excluded. We are. entirely clear .that evidence of the plaintiff’s habits of life was not admissible to prove, that he was drunk at the time this accident occurred, and no case to which our attention is called gives any color to such a contention. There are cases in which such evidence might be admissible, but they are not cases of this character.

The judgment/appealed from should be affirmed, with costs.

Hooker, Gaynor, Rich and Miller, Jj., concurred.

Judgment of the Municipal Court affirmed, with costs.