Hubner v. Metropolitan Street Railway Co.

This action was brought to recover damages for injuries claimed to have been received by the negligent act of one of the defendant’s employés. The plaintiff, a boy of the age of about 10 years and 8 months, was injured while riding a bicycle easterly upon Twenty-Sixth street, near the corner of Lexington avenue. He and another boy were riding down Twenty-Six(:h street, and when about 50 feet from Lexington avenue, plaintiff looked up, and saw an ash cart coming down the avenue about 100 feet above Twenty-Sixth street. In front of them, standing near the southerly side of Twenty-Sixth street, was a horse and wagon, and just behind this standing wagon was a team of horses coming on a trot, hitched to an express wagon. As the express wagon turned out to pass the standing wagon, plaintiff’s friend, who was riding beside him, ran his bicycle between the two wagons, which were from 3 to 5 feet

The plaintiff called as a witness McGrath, the driver of the cart, who testified that upon the day of the accident he was working for the defendant, driving the ash cart; that as he turned into Twenty-Sixth street about 2 feet from the curb, and when about 15 feet from Lexington avenue, the boy, in trying to turn around on his bicycle, ran into the horse’s belly, and thus received his injuries. The plaintiff asked him nothing about whether he was whipping the horse or not. Upon cross-examination by the defendant he testified that he did not have a whip in his hand. Upon this point he was cross-examined by the plaintiff’s counsel, and the evidence was read which he had given upon a former trial, for the purpose of discrediting him, and upon other points about which the defendant had questioned him that had not been touched upon by the plaintiff. The defendant contends that this was error, in that it was an attempt by the plaintiff to impeach his own witness. We are of opinion that the court did not err in the ruling which it made. The cross-examination related to a matter independent of the direct examination, and was part of defendant’s affirmative defense. Under such circumstances the witness became subject to a cross-examination in manner the same, as to the subject-matter developed by the defendant, as the plaintiff would have been entitled to had McGrath been called by the defendant. The limitation-of the rule under such circumstances is that

Counsel contends that error was committed in permitting the plaintiff to withdraw from the case the testimony given by Dr. Williams. This physician had treated the plaintiff since October, 1898. He examined him at the time of the accident. He did not, therefore, testify as an expert upon a hypothetical state of facts developed by the testimony alone, but from actual knowledge which he had gathered by attendance upon him professionally. The witness was cross-examined by the defendant with respect to the curvature of the spine, with which the plaintiff was afflicted, at considerable length, and the redirect examination related to the subject-matter of the cross-examination which had preceded it. We think that the entire testimony, as given by the witness, was competent, and might have been permitted to remain in the case. Counsel for the defendant does not point out in his brief wherein any error was committed in its reception. Being competent, and in the case, it is clear that it could not be stricken out and disregarded, even though produced by the plaintiff, if the defendant was prejudiced thereby. If having once come into the case, the defendant was entitled to have it remain, as well as the plaintiff, if any inference arose therefrom which could in any view be of benefit to the defendant. Frohle v. Railroad Co., 41 App. Div. 344 , 58 N. Y. Supp. 561 ; Fredenburgh v. Biddlecom, 85 N. Y. 196 ; Spaulding v. Hollenbeck, 35 N. Y. 204 . The learned counsel for the appellant has not pointed out in his brief in what manner, if any, the defendant was, or could be, prejudiced by striking out this testimony. The distinct effect of the testimony which was stricken out was to limit the force of the cross-examination with respect to the curvature of the spine, and the anaemic condition of the plaintiff; and, if any benefit was derived by striking it out, that benefit inured to the defendant, as it left the cross-examination of the witness upon such subject without any qualifying circumstances. It was, therefore, more favorable to the defendant than it would have been had the testimony so stricken, out remained in the case. Error was not, therefore, committed by the ruling of the court in this regard. The law upon this subject seems to be that, even though an error be committed by the court in admitting testimony, yet, if it appear with reasonable certainty that the party has not been prejudiced by the introduction of the evidence, and will not be prejudiced by striking it out, the court is authorized to correct the error. Newman v. Ernst (Super. Buff.) 10 N. Y. Supp. 310 , and cases cited. In Erben v. Lorillard, 19 N. Y. 299 , it appeared that prejudicial error was committed which could not be cured by striking out. Indeed, it was evident from the conclusions reached by the jury in that case that they did not follow the direction of the court, as, with the testimony stricken out, nothing remained to support the verdict. It was, therefore, clear that prejudicial error was committed, which was not cured by striking out. In Travor v. Railroad Co., 3 Keyes, 497, Judge

We find nd error which calls for a reversal of this judgment. It should, therefore, with the order appealed from, be affirmed, with costs. All concur, except VAN BRUNT, P. J., and INGRAHAM, J., who dissent.