Quincy v. Warner — 28 N.Y.S. 857

Majority

p. 857

QUINCY v. WARNER.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Headnote

Evidence—Declarations oe Servant.

In an action for injuries alleged to have been caused by defendant’s servant, a declaration by the servant that the accident was partly caused by his fault is admissible to contradict his testimony that he was free from fault.

Appeal from circuit court, Kings county.

Action by George A. Quincy against Benjamin J. Warner to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $2,758.06 damages and costs, and from an order denying a motion for a new trial on the minutes, defendant appeals. Affirmed.

Argued before DYKMAN and PRATT, JJ.

Albert G. McDonald, for appellant.

Dailey, Bell & Crane (James D. Bell, of counsel), for respondent.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiif, and from an order denying a motion for a new trial upon the minutes of the court. The action was for the recovery of damages resulting from an injury to the plaintiff, caused by a fall through a trapdoor in a general hallway of an entrance to a building belonging to the defendant, in the city of Brooklyn. The building was occupied by various tenants, and, among others, by an insurance company, in whose employ the plaintiff was when he was injured. As the plaintiff was about to go up to the office of the company, he fell into the hole, the door being up at the time.

The decisive question upon the trial was whether the janitor, who was the servant of the defendant, was guilty of negligence in permitting the door to be removed, or allowing it to remain off of the opening, which it was designed to cover and protect. The testi

p. 858

mony on the part of the plaintiff was sufficient to prove want of proper care, and that introduced by the defendant was sufficient for his exculpation. It is therefore the common case where testimony on one side is adequate to impose liability, and upon the other sufficient to relieve therefrom, and thus presents a question of fact for the determination of the jury, and leaves an appellate tribunal destitute of power to interfere. There is an exception to the admission of proof of the declaration of the janitor that the accident was his fault, in part, which is not entirely free from doubt. We have concluded, however, that the testimony was admissible in contradiction of his testimony, which was to the effect that he was free from fault. There was no exception to the charge, as finally made. The judgment and order should be affirmed, with costs.