Beyer v. Isaacs

plaintiff’s driver, were at the side of the curb in Sackett street, Brooklyn, the defendants’ servant negligently drove their truck and team against the plaintiff’s wagon, and occasioned the damage complained of. The case contains no certificate that all the evidence is returned. The point which has been chiefly urged by the appellants on the appeal is that the learned trial court erred in permitting the plaintiff’s driver to testify that after the_ collision he told the defendants’ driver that he (the defendants’ driver) was to blame for it, to which the latter replied, “To hell with you!” It is urged that the conversation between the drivers after the accident was no part of the res geste, under the rule laid down in Butler v. M. R. Co., 143 N. Y. 417 , 38 N. E. 454 , 26 L. R. A. 46 , 43 Am. St. Rep. 738 , and that its admission accordingly constituted reversible error. It is further urged that the effect of the evidence was to prejudice the defendants, and necessarily to injure their cause in the estimation of the jury. It may be conceded that the evidence was not competent as a part of the act complained of, or as a declaration or admission of negligence binding the defendants. Burns v. Borden’s Condensed Milk Co., 93 App. Div. 566 , 87 N. Y. Supp. 883 . I do not think, however, that the admission of the evidence warrants a reversal of the judgment. The objectionable part of the answer was not called for by the question which elicited it. No objection was taken to the question until it had been answered in part, at least. After the entire answer was received, no motion was made to strike out the whole or any part of it, and no request was made for instructions to the jury that they disregard it. In such circumstances, it has been" often held that the remedy by appeal is unavailing. Platner v. Platner, 78 N. Y. 90 , 102; Pontius v. People, 82 N. Y. 339 , 347; Turner v. City of Newburgh, 109 N. Y. 301 , 310, 16 N. E. 344 , 4 Am. St. Rep. 453 . Moreover, a similar conversation had been previously narrated by the «witness without any objection on the part of the defendants; the conversation then appearing to have taken place, it is true, just before the collision. But it cannot be assumed that the defendants were prejudiced in any degree by its mere repetition, especially in view of the fact that the defendants’ counsel, on subsequent cross-examination of the witness, caused him to detail the conversation in full, with all its objectionable features, twice again.

No other point presented seems to require discussion. The charge was fair, and the verdict is amply supported by the proof.

The judgment and order should be affirmed.

Judgment and order of the County Court of Kings County affirmed, with costs. All concur.