Gaebler v. Brooklyn Heights Railroad — 130 A.D. 881

Majority

p. 881

Second Department,

January, 1909.

Marie Gaebler, as Administratrix, etc., of Charles G. Gaebler, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.

Headnote

Railroad — negligence — evidencé — credibility of witnesses.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2oth day of November, 1907, upon tor verdict of a jury for §9,875, and also from an order entered in said clerk’i of ice

p. 882

on the 9th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.

Two witnesses testified to being present together at the station where the accident happened, that no one else was there, and that they saw the deceased killed by the starting of the train while, he was getting aboard. A doctor was on the following train, which seems to have come along in a few minutes, and he got off at the station. I-Ie testified for the defendant without objection that two of the men who were there told him that they saw the deceased try to get on the train after it had started, and fall under the car. He was then asked who they were, and said he could not identify them or tell who they were. The testimony was hearsay and would have been excluded if objected to; or when the witness answered that he could not identify them it •should have been struck out on the plaintiff’s motion, for Some persons could have seen the accident from a distance, instead of being right there at the station with the said two witnesses. Instead, the motion was denied. The learned trial Judge reconsidered the matter and afterwards struck the testimony out. This was an everyday occurrence and entirely proper. The history of how it was done and of all that was said in the doing of it, is pointless. The grave thing is the credibility of the two eye-witnesses of the plaintiff, for several witnesses-—.'three employees of the defendant and two policemen — testified that they told'them that the deceased ran after the train and tried to get on it after it had started, but this court can scarcely reverse on that ground; the case is not clear enough The judgment should be affirmed. Present — Woodward, Gaynor, Rich and Hiller, JJ. Judgment and order unanimously affirmed, with costs.