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Ryan v. New York & Queens County Railway Co.

111 N.Y.S. 21 Court N.Y. App. Div. Decision date 1908-06-05 English

Delivered by WOODWARD, J.

Contents

Majority

p. 21
RYAN v. NEW YORK & Q. C. RY. CO.
(Supreme Court, Appellate Division, Second Department.
June 5, 1908.)

Headnote

Evidence—Relevancy—Character.
In an action against a street railway for injuries to a passenger in alighting from a car, testimony of a witness, who had stated that plaintiff was drunk at the time of the accident, as to whether he had seen plaintiff drunk on other occasions, was inadmissible.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 186-398.]
p. 22
Appeal from Municipal Court of New York.
Action by Patrick J. Ryan against the New York & Queens County Railway Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Argued before WOODWARD, HOOKER, RICH, MILDER, and GAYNOR, JJ.
Anthony J. Ernest, for appellant.
John Hetherington, for respondent.

This is an action to recover for personal injuries, due to the alleged negligence of the defendant in starting its car before the plaintiff, who had signaled for a stop, had had an opportunity to alight. There was a clear conflict of evidence as to whether the car had stopped or not when the plaintiff stepped off, and we are of the opinion that the weight of evidence is not against the conclusion reached by the jury.

The only other suggestion for a reversal of this judgment is the alleged error of the trial court in excluding evidence. Defendant’s witness had testified to the effect that the plaintiff was drunk, or appeared to be drunk, at the time of the accident, and that he stepped off the car in spite of the motorman’s warning not to do so. The witness was then asked as to whether he had seen the plaintiff drunk on other occasions, and this was, on objection, excluded. We are entirely clear that evidence of the plaintiff’s habits of life was not admissible to prove that he was drunk at the time this accident' occurred, and no case to whitih our attention is called gives any color to such a contention. There are cases in which such evidence might be admissible, but they are not cases of this character.

The judgment appealed from should be affirmed, with costs. All concur.