Connolly v. Brooklyn Heights Railroad — 86 A.D. 245

Majority

p. 245

Elizabeth Connolly, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.

Headnote

Verdict — not set aside, where the defendant claims that the jury were unduly influenced by persistent efforts to introduce incompetent evidence, the verdict not being excessive or the plaintiff’s right to recover doubtful.

Where, upon an appeal by the defendant in a negligence case from a judgment entered upon a verdict in favor of the plaintiff, the defendant contended that the jury were unduly influenced by the conduct of the plaintiff’s counsel in endeavoring to place before them the contents of a letter describing the circumstances of the accident, written by the plaintiff’s son-in-law to the defendant, the day following the accident, which letter was finally excluded as incompetent, the Appellate Division refused to reverse the judgment upon this ground, it appearing that the verdict was not excessive and that there was not so great a weight of evidence in favor of the defendant's theory of the accident as to create a doubt as to the justice of the verdict.

Woodward, J., dissented.

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 Kings on the 24th day of November, 1902, upon the verdict of a jury for $3,000j and also from an order entered in said clerk’s office on the 5th day of December, 1902, denying the defendant’s motion for a net? trial made upon the minutes.

I. R. Oeland and George D. Yeomans, for the appellant.

Stephen C. Baldwin, for the respondent.

The plaintiff claims that she was injured while in the act of alighting from a car of the defendant’s. Her contention is that she signaled the conductor, that the car stopped and that she commenced to get off the car, but that before she had reached the ground the car started with a sudden jerk, throwing her down, breaking her ankle and causing other injuries. She recovered a verdict for $3,000, and from the judgment entered thereon the defendant appeals.

Upon the evidence the jury were justified in finding a verdict for the plaintiff! They could have easily believed either the evidence

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of the plaintiff or that of the defendant. I do not find any such preponderance of evidence in favor of the defendant as to justify a reversal of the judgment.

The appellant contends, however, that the conduct of the plaintiff’s counsel in endeavoring to get before the jury the contents of a letter describing the circumstances of the accident, written by the plaintiff’s son-in-law to the company the next day after the accident, and after, as she testified, she had related to him the circumstances under which it occurred, tended to influence a verdict in favor of the plaintiff.

The following is the record, the defendant’s local claim agent being under recross examination : “ Q. Did you have in your possession a letter from a Mr. Armour, the son-in-law of the plaintiff ? .A, There was a letter sent. Q. In regard to this case? A. There was a letter sent to our main office, and it was referred to me and I—;—. Q. Where is it? A. Well, I turned it in when I turned the papers in at the main office. Q. Have you got the letter ? Mr. Oeland: Yes. [Defendant’s counsel produces letter.] Mr. Baldwin : I offer this letter in evidence. [Defendant’s counsel objects to a letter written by a relative.] Mi’- Baldwin: It is a letter from her son-in-law written a day after,, stating the whole acts of this case, although they now claim that this lady went from the car to the curb before she fell down. I have the letter in answer to this signed by Mr. Greatsinger, who refers the matter to his claim department. I offer them both in evidence. The CourtI have some doubt about it. Mr- Baldwin : This is a letter -written the very day after this accident, apprising the company of the exact nature of the accident, and we have the answer from the president to that letter. Now,'as I understand their position, they are going ito claim that this lady walked away from the car and fell hei- ■ self after the car had gone half-way across Hancock street, and 'fell in the gutter, and despite that she has- brought an action ■ against'this railroad' company, seeking to fasten liability upon the ■railroad company, and that in face of the fact that I have here the • letter of ¡her son-indaw, who wrote to this company the very day after the accident, the moment that mother-indaw returned to his house, stating the nature of the claim and corroborating exactly her 1 present ■ statement. [Objected to as inadmissible ; objection sus

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tained; exception taken. The letters referred to are marked for identification one and two.] The Court: All that he said, which discloses the character or contents of the letter, is to be excluded ■and is to be disregarded by the jury.”

In Cosselnon v. Dunfee ( 172 N. Y. 507 ), the court, while affirming' a judgment for the plaintiff in a negligence case, took occasion to reprehend the practice of Counsel in attempting to introduce incompetent evidence, saying (p. 508), “ where the trial court or Appellate Division is satisfied that the verdict of the jury has been influenced thereby it should, for that reason, set aside the verdict.” . If the verdict had been excessive, which is not claimed by appellant’s counsel, or if there had been so great a weight of evidence in favor of the defendant’s theory of the accident as to create a doubt of the justice of the verdict, I should recommend reversal, but a careful reading of the evidence does not bring me to any such conclusion.

The judgment should be affirmed.

Hirschberg and Hooker, JJ., concurred in result ; Woodward, J., dissented,

Judgment and order affirmed, with costs.

Cases cited

Cosselmon v. Dunfee 172 N. Y. 507 N.Y. 1902-11-25 p. 247