Seipp v. Dry Dock, East Broadway & Battery Railroad

Majority

p. 489

Frances Seipp, as Administratrix, etc., of Frederick Seipp, Deceased, Respondent, v. Dry Dock, East Broadway and Battery Railroad Company, Appellant.

Headnote

Negligence — evidence as to the arrest of the defendant’s car driver and his statements.: —proof of admissions by a witness not called to his attention on cross-examination — offer of a witness of one party to testify in favor of the other.

In an action to recover damages resulting from the death of the plaintiff's intestate, the question at issue being whether the intestate was thrown from an ice-wagon in consequence of its collision with one of the defendant’s cars, or in consequence of the wagon jilting against the tracks of another railroad company * it is error to permit the plaintiff to prove that the driver of the car, who was,

p. 490

sworn in support of the defendant’s contention, upon being arrested, on his return trip after the accident, told the police officer who arrested him, that he, the officer, was the man he wanted, from which the jury, might infer that he deemed himself at fault and contemplated a voluntary surrender.

3n such an action testimony of the driver of the ice wagon, to the effect that tlie car conductor told him that the car driver was at fault, is incompetent, either as part of the res gestee or to contradict the conductor, where the latter’s attention was not, upon his cross-examination, called to the statement alleged to have been made by him.

lit is also erroneous to permit one Grauer, a witness sworn by the plaintiff, to state that Fay, a witness who had testified on behalf of the defendant, had' stated to him that he, Fay, would be willing to be a witness for the plaintiff if . called upon, as such testimony was collateral to the issue, and the plaintiff was concluded by the answers in respect to that matter which had been given by Fay upon his cross-examination.

Appeal by the defendant, the Dry' Dock, East Broadway and Battery 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 Flew York on the 20th day of February, 1899, upon the verdict of a jury for $5,000, and also from an order entered in said -clerk’s office on the 24th day of February, 1899, denying the defendant's motion for a new trial made upon the minutes.

Herbert R. Limburger, for the appellant.

Herman Gottlieb, for the respondent.

This is an action to recover damages for the death of one Fred-erick Seipp caused, as alleged, by the defendant’s negligence. The •claim is that on the morning of the 15th of June, 1898, while Seipp was standing on the rear footboard of an ice wagon, which was •erosing Grand street at the intersection of Forsyth, one of the ■defendant’s cars negligently struck the ice wagon, throwing Seipp •off and causing the injuries from which he died. The defendant’s •claim is that the car never struck the ice wagon, and that the acci•dent was caused by the latter’s jolting against the'tracks of the Sec-ond Avenue Railroad Company. Thesé tracks were superimposed •upon the defendant’s tracks at.the crossing in question and projected some two and one-half inches above them. Flo further facts need ¡be stated. There was conflicting evidence upon the respective con

p. 491

tentions pointed out, and we have stated enough to show the bearing on these contentions of the rulings questioned by the appellant.

The defendant’s contention was supported by the testimony of the driver of its car. In rebuttal „the plaintiff was permitted to prove, under the .defendant’s objection and exception, that on this ■driver's next return trip after the accident he was arrested by a police officer, and that, upon the arrest, he told this police officer •that the latter was the man he wanted. This was clearly erroneous. ‘The fact of the arrest was irrelevant, and its admission was likely to influence the. jury adversely to the defendant’s contention, especially with regard to the driver’s credibility. (Luby v. Hudson River R. R. Co., 17 N. Y. 131 ; Maisels v. The Dry Dock, E. B. & B. St. R. R. Co., 16 App. Div. 391 .) Then, too, the declaration of the driver, made on a subsequent trip — a declaration from which, the jury might fairly have inferred that he deemed himself at fault and was looking for the policeman to make a voluntary surrender — was ■equally inadmissible. The authorities are all one way on this point. (Whitaker v. Eighth Ave. R. R. Co., 51 N. Y. 295 ; Anderson v. Rome, W. & O. R. R. Co., 54 id. 334 ; Waldele v. N. Y. C. & H. R. R. R. Co., 95 id. 274.) The defendant attempted to mitigate the effect of this evidence bj^ showing that it was the rule to arrest ■the driver in every such case, but it was not permitted to show this.

It was also error to permit Hills, the driver of the ice wagon, to testify that the conductor of the car told him that the driver was at fault. This was inadmissible as evidence in chief, as it was not part ■of the res gestee, and it was equally inadmissible to contradict the ■conductor for the reason that the latter’s attention was not called to it upon cross-examination. It is true that upon cross-examination he denied telling Hills that it was his own fault; but he neither affirmed nor denied that lie charged the. fault upon the driver.

Another error was committed, upon the examination of one Grauer in rebuttal. He was allowed to testify, under objection and exception, that Fay, the driver of a Second avenue car, who was in the neighborhood at the time of the accident, and who testified on hehalf of the defendant, told him (Grauer) that he (Fay) would be willing to be a witness for the injured man if he was called upon. This was entirely collateral, and the plaintiff was bound by the answers on that head given by Fay upon cross-examination.

p. 492

There were other errors of a similar character. We need not go Over them in detail, as they áre not likely, in view óf wlíát we have! said, to be. repeated upon another trial.

It is clear that the defendant was prejudiced by these rulings- .and! that they necessitate a new trial

The judgment and order appealed from .should be reversed and a. 'hew trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin,. JJ.,. concurred. ■ ■

Judgment and order reversed,, yew trial ordered,, costs to -appellant'' to abide event. . " •

Cases cited

Luby v. Hudson River Railroad 17 N. Y. 131 N.Y. p. 491
Maisels v. Dry Dock, East Broadway & Battery Railroad 16 App. Div. 391 N.Y. App. Div. 1897-04-23 p. 491
Whitaker v. Eighth Avenue Railroad 51 N. Y. 295 N.Y. Comm'n App. p. 491