Eureka Stable Co. v. Metropolitan Street Railway Co.

Majority

p. 509

EUREKA STABLE CO. v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

June 28, 1900.)

Headnote

Expert Witness—Competency—Striking Out Testimony.

In an action against defendant for negligently running into and injuring plaintiff’s coach, a witness was allowed to answer the question: “What would you say to be the difference between the value of that coach at the time you saw it there that day, and after it left-your shop,—after it had been repaired?” On cross-examination he testified that he had no remembrance of the condition of the coach before the accident. Heidi error to refuse to strike out his testimony as to value, since by his own evidence he was incompetent to tell how much the coach had been injured.

p. 510

Appeal from city court of ¡New York, general term.

Action by the Eureka Stable Company against the Metropolitan Street-Railway Company for injuries to plaintiff’s coach. Prom a judgment in favor of plaintiff, defendant appeals.

Modified.

Argued before TRUAX, P. J., and DUGKRO and SCOTT, JJ.

Henry A. Robinson, for appellant.

Holm & Smith, for respondent.

The witness Schildwachter, who had qualified as an expert, was asked, “What would yon say to be the difference between the value of that coach at the time you saw it then, that day, and after it left your shop,—after it had been repaired?” To this question the defendant objected on the ground that it was “incompetent, irrelevant, and immaterial, as assuming facts not proved, and that it is a comparison, which is a question for the jury in this case.” This objection was overruled, and the defendant duly excepted. On cross-examination the witness testified, in substance, that he had no particular remembrance of the condition of the carriage before the accident, and thereupon the defendant moved to strike out the evidence of the witness -as to value, on the ground that it appeared that the witness was not able to state what the condition of the carriage was before the accident. This motion was denied, ánd the defendant duly excepted. This motion should have been granted. The witness, not knowing the condition of the carriage before the accident, was not able to tell how much it had been injured by the accident. But he had testified that he made certain repairs to the carriage, and the reasonable and fair value of the work he did was $158.70; and therefore the judgment will be reversed, and a new trial ordered, with costs to appellant to abide the event, unless the respondent consents to a reduction of the verdict to $158.70, in which event the judgment and order appealed from will be affirmed, without costs to either party in this court or in the general term of the city court.