Martin v. Wood — 5 N.Y.S. 274

Majority

p. 274

Martin v. Wood.^[1]

(Supreme Court, General Term, Fourth Department.

May, 1889.)

Headnote

1. Witness—Impeachment—Secrecy of the Ballot.

In an action for negligent and willful injuries, it is a proper exercise of discretion to refuse to allow a witness to be impeached by asking him if he voted at town meeting a certain ticket which is blasphemous, the statute requiring ballots to be folded so as to conceal their contents, (Laws N. Y. 1842, c. 130, tit. 4, § 7,) and forbidding that they be'marked to designate the voter, (Laws 1880, c. 366, § 3,) and forbidding the inspectors to open them, or allow them to be opened, (Laws 1842, c. 130, tit. 4, § 28.) Following Martin v. Wood, 4 N. Y. Supp. 208 .

2. Parent and Child—Loss of Services—Damages—Husband and Wife.

Where plaintiff alleges that defendant negligently and willfully injured his minor child, and seeks to recover for loss of services and for expenses in the child’s care and treatment, evidence of the value of the services of plaintiff’s wife in caring for the child is properly received, there being no objection that loss in that respect is not specifically stated in the complaint.

3. Same—Evidence—Declarations.

Evidence by the attending physician of the child’s complaints when he made by manipulation a personal examination of the injured parts is admissible.

4. Contributory Negligence—Willful Injuries—Trial.

Contributory negligence has no application to the question of the commission of a willful injury, and a point in relation thereto is therefore not available on-motion for nonsuit.

Appeal from circuit court, Otsego county.

Action by Elliott Martin against Zelotus J. Wood. It is alleged in the complaint that the plaintiff on the 2d March, 1881, was driving in the highway with his team and cutter, carrying his two minor children to school; that the defendant was at the same time driving a horse and cutter along the same highway in the rear of plaintiff; that the defendant carelessly, negligently, and willfully, and with intent to injure the plaintiff and his children, drove his horse and cutter upon and against the cutter of the plaintiff, and injured one of his children so that she was for a long time sick. The plaintiff claims to recover for loss of services of the child and for expenses in her care and

p. 275

treatment. Verdict for plaintiff. Motion for new trial on ease containing exceptions denied, and defendant appeals.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

W. J. Palmer, for appellant. James A. Lynes, for respondent.

A witness for plaintiff was asked upon his cross-examination to look at a paper, and was then asked: “Did you vote a ticket like that? Answer. I didn’t vote that ticket. Question. Is that a copy?” This was objected to by plaintiff’s counsel; that under our laws a man has a right to vote as he pleases; that right cannot be called in question in any collateral matter. The evidence was offered with a view of showing that the ticket voted by witness at town meeting was blasphemous, and as affecting the credibility of the witness, and was excluded. The propriety of this ruling is fully discussed by Mr. Justice Vann in his opinion upon the motion at special term, reported in O. V. Supp. 208. We agree with him that the ruling was correct. The trial court had a discretion in the matter, and it was properly exercised.

The evidence of the value of the services of the wife of the plaintiff in the ■care of the injured child was properly received. The loss of the plaintiff in that regard was a part of his damage in the matter, and no objection was taken that it was not specifically stated in the complaint. Uertz v. Manufacturing Co., 35 Hun, 116 .

The evidence of the attending physician of the complaints of the child when he made by manipulation a personal examination of the injured parts was proper. It was during her illness, and in the line of his professional attendance. Roche v. Railroad Co., 105 N. Y. 295 , 11 N. E. Rep. 630 .

The question of contributory negligence was, under all the circumstances of the ease, for the jury. There was in the case as given to the jury an element •of willful injury, to which, as charged by the court, the theory of contributory negligence did not apply. The charge was not excepted to. The point as to contributory negligence was only raised on motion for nonsuit, and would not then be available if in one phase of the case it did not apply. •

It follows that the judgment and order should be affirmed. All concur.