p. 25923d day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.
Chernies F. Brown, for the appellant.
Lemuel Skidmore, for the respondent.
By this action damages are sought to be recovered for injuries alleged to have been sustained by the plaintiff through the negligent acts of the defendant. Upon the trial evidence was given by the plaintiff tending to show that she was a married woman, about forty-eight years of age, at the time of the reception of the injuries that on the 30th day of September, 1899, the plaintiff, in company with her husband and daughter, attempted to board a street car on Fourth avenue, at the entrance to the tunnel of the railroad, just below Thirty-fourth street.' The plaintiff’s husband signaled for a car to stop, and in response thereto the car came to a stop close to where plaintiff was standing. The car was somewhat crowded and the conductor said to them, “ step in, ladies; there is plenty of room inside.” Two women got on the car before plaintiff made an attempt to go aboard. As she placed one foot upon the step, she grasped hold of the rail on the rear dashboard with her left hand and held up her skirts with her right hand, and while she was in the act of raising her other foot from the ground the car started with a violent jerk, which caused her to partially lose her balance, and while trying to recover herself ' the car gave another jerk, which precipitated her to the pavement and she received injuries of quite a serious character. Upon the part of the defendant evidence was given tending to establish that the plaintiff boarded - the car at the place stated; that after she was aboard the car was started; that the plaintiff then discovered that her husband and daughter had not succeeded in getting on the car, whereupon she deliberately walked off after it had proceeded some little distance and was thrown to the pavement and injured. These two theories were supported by the testimony, upon either side, of a number of witnesses and the case upon the testimony presented a question of fact which required the court to submit the same to the jury.
Several errors are urged upon our attention, one of which we
p. 260regard as fatal to the judgment' which has been obtained. During the course of the trial Eugene Worden, a witness for the defendant and employed by it as a car starter at about the place where the car stopped, was called as a witness and testified in substance to the version of the transaction as claimed by the defendant. It appeared that after the accident Worden assisted the plaintiff’s husband in removing the plaintiff to the waiting room nearby, where she remained until she was removed to her home. After the defendant had offered all of its proof thelplaintiff recalled Worden to the stand and interrogated him respecting a conversation he had with, the plaintiff’s husband in the waiting room. In answer thereto Worden testified that he had no conversation with the plaintiff’s* husband at the scene of the accident; that plaintiff’s husband did not tell him in the waiting room that his wife was thrown off the car and that he did not ask him what was the matter; that he did not remember stating to him that he “ was sorry that such an accident should happen to one of my neighbors, as I lived in the same vicinity ; ’-’ that he did not tell him that he had not the number of the car, but that he had the number of the following car; “ I did not then say to Mr. Wimmer, ‘ I know the fellow. He never said a word to me about the accident,’ or words to that effect. Speaking of the conductor of the car, I am sure I didn’t.” And he further stated: “No conversation except in relation to his name arid address. I am not positive in reference to whether I told him- that I was sorry that it happened to a neighbor. I didn’t say, ‘ I know the fellow. He never, said anything .to me about the accident.’ I know I didn’t say such a thing, as that. I am positive of that.” Subsequently the husband of the plaintiff yuis called as a witness and interrogated with respect to what transpired in the waiting room. This. was objected to by the defendant as incompetent, improper, irrelevant, immaterial, as it was not proof in rebuttal. The objection was overTuled, and the witness testified with respect to where he saw Worden . and stated that he had a conversation with him at the waiting room. He was then asked: “ What was that conversation ? ” To which the defendant objected upon the same grounds as before, and upon the further ground that it was offered for the purpose of contradict, ing the witness on the matter brought out by the plaintiff, that such matter was purely collateral; that the plaintiff was bound by
p. 261it and should not be permitted to contradict what he said or denied. This objection was overruled, exception was taken, and the witness was permitted to testify:
“ When the starter came up to me he asked me what was the matter. So I told him my wife was thrown off the car. So he asked me:
‘ What is your address ? What is your name
% Where do you live ? ’ I stated to him the name and address. So after that he said, that
‘ I am very sorry that that must happen to one of my neighbors.’ Further on I told him that the number of the car I took was the following car after the car the accident happened on, and the time when it happened. So he looked at me and says: ‘ Well, I know the fellow. He never said a word to me.’ Then my wife, she fainted away, and he rung up for an ambulance.” This evidence was improperly received, as it bore upon a matter collateral to the issue. When the plaintiff called Worden and interrogated him in respect thereto she became bound by his answers, and could not thereafter call witnesses to contradict him. That a ruling permitting such an examination constitutes reversible error has been recently held by this court.
(Deutschmann v.
Third Ave. R. R. Co., 78 App. Div. 413 , and cases cited.) The evidence was distinctly prejudicial, as the plaintiff was permitted to have considered by the jury the husband’s declaration that his “ wife was thrown off the car.” This was the vital issue in the case, and the husband was enabled to give in evidence his declaration of the fact long after the accident had happened. The conversation was clearly collateral, and when the witness Worden denied that such statement was made to him at that time, the plaintiff had no legal right to contradict it. The conversation was also improper for another reason. The declarations made by Worden at the station after the accident happened were not binding upon the defendant. He was not then engaged in the defendant’s business, and his declarations could not be made available to fasten liability upon the defendant, and they could not be proved, either by way of contradiction or otherwise, any more than the declaration of a stranger could be taken after the happening of the event.
There are other rulings upon evidence, especially those relating to the examination of the physicians, bearing upon the permanent character of the injuries', and also in permitting Dr. Falser to testify as an expert in nervous diseases after he had stated that he was not
p. 262qualified to' give expert testimony upon the subject, which are doubtful in the extreme. We do not discusss them, however, as they may not arise upon another trial.
For the error above noted the judgment and order should he reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.
Judgment and order reversed and new trial ordered, costs to appellant to abide event.