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Brown v. Interurban Street Railway Co.

43 Misc. 374 Court N.Y. App. Term English

Delivered by *375 Scott, J.

Contents

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p. 374
Nettie Brown, Respondent, v. The Interurban Street Railway Co., Appellant.
(Supreme Court, Appellate Term,
March, 1904.)

Headnote

Witness — Credibility affected by receipt of'more than his legal fees.
A judgment for the plaintiff, rendered in an action to recover damages for personal injuries alleged to have resulted from the negligence of the defendant, must be reversed where it appears that although a physician, who had given evidence for the plaintiff in regard to the permanent results of her injuries, admitted on the trial that he had refused to testify for her until paid and that he had been paid by her attorney by a check, the court refused to allow him to state on cross-examination how much he had been paid, as it may properly be inferred that the check was for more than fifty cents, the legal fees of a witness, and, if it was, the . excess payment was a proper subject for the jury to consider as bearing upon the credibility of his testimony — that is, whether the excess payment influenced it.
Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered upon the verdict of a jury and also from an order denying defendant’s motion for a new trial.
Henry A. Robinson (Bayard H. Ames and F. Angelo Gay-nor, of counsel), for appellant.
"Wertheimer & Duffy (Louis Wertheimer, of counsel), for respondent.

The evidence did not make it as clear as might be wished that the conductor saw the plaintiff’s signal, or knew that she intended to leave the car. If he had no such notice or knowledge he could not properly be charged with negligence in starting the car. Fremont v. Metropolitan St. R. Co., 83 App. Div. 308 -314. The jury probably inferred such knowledge on his part from the fact, testified to by plaintiff, that after she signaled he rang the bell. There may, however, have been some other reason for that. It is not necessary, however, to consider the question whether the proof was sufficient in this regard because the judgment must be reversed for an error in the exclusion of testimony. A physician called to give evidence as to the plaintiff’s injuries testified that he refused to come to court as a witness until he had been paid, and that the plaintiff’s attorney sent him a check, whereupon he attended and did testify. He stated distinctly that he had received money from plaintiff’s attorney for coming to court in this case. He was then asked how much he had been so paid, and upon objection the question was excluded. This was clearly error. Green v. Metropolitan St. R. Co., 60 App. Div. 317 ; Zimmer v. Third Ave. R. R. Co., 36 id. 273. It cannot be said that the error was not prejudicial. The verdict was not inconsiderable, and the witness had testified with much emphasis as to the permanent results of the accident and the weakening effect upon plaintiff’s arm. It is quite reasonable to assume that the verdict was enhanced if the jury gave full credence to the evidence. The error was not cured by the instruction upon the subject given to the jury at the end of the charge. Without knowing how much the witness was paid, and from the fact that he was paid by check, it may be inferred that it exceeded the statutory fifty cents; the jury had no means of judging to what extent the fee may have affected his testimony.

Judgment reversed and new trial granted, with costs to appellant to abide the event.

Ebeedmak, P. J., and Blajvohabd, J., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.

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