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Gaebler v. Brooklyn Heights Railroad

114 N.Y.S. 585 Court N.Y. App. Div. Decision date 1909-01-15 English

Delivered by GAYNOR, J.

Contents

Majority

p. 585
GAEBLER v. BROOKLYN HEIGHTS R. CO.
(Supreme Court, Appellate Division, Second Department.
January 15, 1909.)

Headnote

1. Evidence (§ 317[2] )—Hearsay—Admissibility.
Two men having testified to being together at the station when the accident happened and seeing decedent killed by the train starting while he was boarding it, one who got off at the station a few minutes after the accident testified that two men at the station when he got off told him that they saw decedent try to get- on the train after it had started
p. 586
and fall under the car; but witness could not identify the men. Held, that the testimony was hearsay, and should have been stricken on motion, when it appeared that witness could not identify the men.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ U7-A-1192; Dec. Dig. § 317.*]
2. Tbial (§ 90*)—Reception of Evidence—Striking Improper Evidence.
The trial court, after denying a motion to strike out hearsay testimony, could afterward strike it on his own motion.
[Ed. Note!—For other cases, see Trial, Dec. Dig. § 90.*]
3. Appeal and Error (§ 994*)—Review—Credibility of Witnesses.
Two of plaintiff’s witnesses testified that they were together at the station when the accident happened, and saw decedent killed by the train starting while he was attempting to board it-; but three of defendant’s employés and two other witnesses testified that plaintiff’s two witnesses told them that decedent ran after the train and tried to get on after it started. Held, that the judgment for plaintiff would not be reversed on the ground of the lack of credibility of plaintiff’s witnesses.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3901-3906; Dec. Dig. § 994.[2] ]
Appeal from Trial Term, Queens County.
Action by Marie Gaebler, as administratrix of Charles G. Gaebler, deceased, "against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, defendant appealed. Affirmed.
Argued before WOODWARD, GAYNOR, RICH, and MILLER, JJ.
D. A. Marsh, for appellant.
John De Witt Warner, for respondent.

Two witnesses testified to being present together at the station where the accident happened, that no one else was there, and that they saw the deceased killed by the starting of the train while he was getting aboard. A doctor was on the following train, which seems to have come along in a few minutes, and he got off at the station. He testified for the defendant without objection that”two of the men who were there told him that they saw the deceased try to get on the train after it had started, and fall under the car. He was then dsked who they were, and said he could not identify them or tell who they were. The testimony was hearsay and would have been excluded if objected to; or when the witness answered that he could not identify them it should have been struck.out on the plaintiff’s motion, for some persons could have seen the accident from a distance, instead of being right there at the station with the said two witnesses. Instead, the motion was denied. The learned trial judge reconsidered the matter and afterwards struck the testimony out. This was an everyday occurrence and entirely proper. The history of how it was done, and of all that was said in the doing of it, is pointless. The grave thing is the credibility of the two eye witnesses of the plaintiff, for several witnesses—three employés of the defendant and two policemen—testified that they told them that the deceased ran after the

p. 587
train and tried to get on it after it had started, but this court can scarcely reverse on that ground; the case is not clear enough. o The judgment should be affirmed.

Judgment and order affirmed, with costs. All concur.