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Whalen v. Standard Gas-Light Co.

10 N.Y.S. 105 Court N.Y.C.P. Decision date 1890-06-02 English

Delivered by Daly, J.

Contents

Majority

p. 105
Whalen v. Standard Gas-Light Co.
(Common Pleas of New York, City and County, General Term.
June 2, 1890.)

Headnote

Appeal—Rulings on Evidence—Errors Cured.
In an action by a servant against bis master for injuries alleged to have been caused by defective appliances, the error in admitting in evidence a statement of defendant’s foreman is not cured by instructing the jury to disregard it.
Appeal from trial term.
Action by Patrick Whalen against the Standard Gas-Light Company of the city of New York to recover damages for a personal injury. There was a verdict for plaintiff for $5,000. From the judgment rendered thereon defendant appeals.
Argued before Daly and Bookstaver, JJ.
J. W. Hawes, for appellant. Wm. C. Neddy, for respondent.

The plaintiff, a laborer in the defendant’s employment, was injured while loading gas-mains upon a truck, and it is claimed that defendant furnished unsafe appliances for the work; the truck, and the means for load-it, being, as alleged, unsuitable and improper. On the trial, a fellow-workman of the plaintiff was permitted to testify to a declaration made by defendant’s foreman after the accident that the truck was not a fit truck to load pipe on. The exception to the admission of this evidence requires the reversal of the judgment. Admissions and declarations of an agent after the fact, not part of the res gestee, are not admissible. An attempt was made to cure the error by a subsequent direction to the jury to disregard the evidence. This is unavailing. Erben v. Lorillard, 19 N. Y. 299 ; Church v. Howard, 79 N. Y. 415 . The judgment should be reversed, and a new trial ordered, with costs to abide event.

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