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Bloom v. Union Railway Co.

150 N.Y.S. 779 Court N.Y. App. Div. Decision date 1914-12-31 Docket No. 6618 English

Delivered by McLAUGHLIN, J.

Contents

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p. 779
BLOOM v. UNION RY. CO. OF NEW YORK.
(No. 6618.)
(Supreme Court, Appellate Division, First Department.
December 31, 1914.)

Headnote

1. Evidence (§ 271[2] )—Self- Serving Declarations.
In an action by a passenger hurt while alighting, a report made by the conductor in charge of the street car as to the cause of the accident is inadmissible, being a mere self-serving declaration.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1068-1079, 1081-1104; Dec. Dig. § 271.*]
p. 780
2. Appeal and Error (§ 1050[2] )—Report—Harmless Error.
Where the evidence as to the cause of an injury to a passenger in alighting conflicted, the erroneous admission of the conductor’s report was prejudicial error.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*]
Appeal from Bronx County Court.
Action by Esther Bloom against the Union Railway Company of New York. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed and remanded.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ.
J. Brownson Ker, of New York City, for appellant.
J. Ralph Hilton, of New York City, for respondent.

This action was brought in the County Court of the county of the Bronx to recover damages for personal injuries alleged to have been sustained by plaintiff while getting off one of defendant’s cars. The defendant had a verdict, and from the judgment entered thereon, and an order denying a motion for a new trial, plaintiff appeals.

The plaintiff’s testimony was to the effect that while she was getting off the car it was suddenly started, and she was thrown to the ground and injured. Her testimony as to the car starting while she was getting off was uncorroborated. The testimony of three witnesses on the part of the defendant was to the effect that plaintiff stepped from the car while it was in motion and in this way her injuries were sustained. The jury, as indicated by its verdict, necessarily found that the plaintiff stepped from the car .before it had come to a stop, and by reason of that fact she was not entitled to recover.

[1,2] The evidence fairly sustains the finding of the jury, and we would have no hesitancy in affirming the judgment, except for an error in the admission of evidence. Defendant’s witness Fitzpatrick, the conductor of the car, testified that after he had signaled to the motorman to stop the car, and before it had come to a full stop, the plaintiff .started to get off; that he put his hand on her arm, and told her to wait until the car stopped; that she did not do so, but steppéd off while the car was in motion, and was thrown to the ground. He was then asked to identify the plaintiff, who was in court. After looking at her, he stated that he thought she was the one, but at the time of the accident she looked older. He finally stated that he could not swear positively whether or not she were the woman who got off. Defendant’s counsel then produced a paper, and asked the witness if it were in his handwriting. He stated that it was, and consisted of a report to the defendant of the accident; that he made out the report in the evening following the accident, and in it he gave the name of the woman injured. He was then shown the report, and after looking at it said it refreshed his recollection, and it was the plaintiff who got off. The report was then offered in evidence, to which plaintiff’s counsel ob

p. 781
jected. The objection was overruled, an exception taken, and the report received.

This was error. It was, at most, a self-serving declaration of defendant’s representative. In this report was a statement that:

“As car was coming to a stop at 179th street and Third avenue, a lady, who was standing on rear platform on exit side, suddenly jumped off backwards. I had my hand on her arm, but she jumped too forcibly.”

There was, as already indicated, a conflict in the testimony as to whether or not plaintiff stepped from the car after it had come to a stop. This report bore very strongly upon that issue, and may have affected the substantial rights of the plaintiff.

The judgment and order appealed from, therefore, must be reversed, and a new trial ordered, with costs to appellant to abide event. All concur.