Taube v. Dry-Dock, E. B. & B. Railroad

Headnote

.Evidence—Admissions Made Out of Court—Effect.

In an action to recover damages for injuries received while getting off defendant’s street car, evidence of admissions made out of court by plaintiff, that he fell while attempting to get off the car when it was in

motion, are not conclusive against plaintiff’s right to recover, as he may, notwithstanding such admissions, prove that defendant was negligent, and that he was free from contributory negligence.

Appeal from trial term.

Action by Max Taube against the Dry-Dock, East Broadway & Battery Railroad Company. From an order setting aside a verdict in favor of defendant, and granting a new trial, defendant appeals.

Affirmed.

The opinion of FITZSIMONS, J., at trial term, is as follows:

Defendant’s counsel requested me to charge “that if the jury believe that the plaintiff made to Drs. Museovitz and Michol the admission that has been proven in this case,—that he was getting off the car while it was in motion, and before it stopped,—that defendant is entitled to a verdict.” I charged: “If he made that admission, and the jury believed it [i. e. that he made this admission], I charge you. that in that event the verdict would have to be in favor of defendant.” In effect, I charged that although, if the jury believed that plaintiff was entitled to a verdict because of defendant’s negligence, and his freedom from contributory negligence, yet their verdict must be for defendant, if they believed that defendant stated to Drs. Museovitz and Michol that he was injured by getting off the car while it was in motion. It seems to me that it is not necessary to cite any authorities, or indulge in any argument, to prove the error of such direction. Error is apparent on its face. Surely, the mere admission referred to, made out of court, could not have defeated a recovery by plaintiff of a verdict herein, providing he proved defendant’s negligence, and that he was free from contributory negligence. Yet I so charged, and for that reason a new trial must be granted. Settle order upon notice.