Myers v. Long Island Railroad — 10 N.Y. St. Rep. 430

Majority

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Henry S. Myers, Administrator, etc., Resp’t, v. The Long Island R. R. Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

1. Negligence—Railroad.

The deceased, a small hoy, was attempting to get upon the platform of the defendant’s cars at a certain station to go as a passenger. The train, which was large and crowded, had stopped at the station. The hoy got two steps up, and as he was about to reach the platform the car suddenly Started and threw him under the cars and killed him. Held, that there was

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sufficient evidence of negligence to impose liability upon the railway company.

2. Evidence—Secondary evidence—When admissible.

Before a copy of a paper is admissible in evidence either the loss of the original must be shown or that a subpoena to produce it was served.

3. Trial practice—Impeaching a witness.

In order to introduce in evidence a former statement of a witness for the purpose of impeaching him, the attention of said witness must be called to the time and place and to the persons to whom or in whose presence the statement was made.

Appeal from a judgment in favor of plaintiff entered on a verdict, and an order denying a new trial.

Jacob Charles Myers was killed at Far Bockaway, August IT, 1884, by being run over by defendant’s train. He was a bright boy about eight years old, and on Sunday evening at about 8.15 p. m., be came to the depot at Far Bockaway, in take the train for New York. He was accompanied by Ms cousin, Benjamin Berliner, aged 16 years, who was going to New York with him, and his elder brother came to the depot to see the other two boys off. The boys stood upon the station platform waiting for the train in the midst of a great crowd which had gathered for the same purpose, the train being the last one, and the excursion season being at its heighth. The train, consisting of nine cars and an engine, pulled into the station slowly, and, as it did so, the crowd made a rush for it, and the pressure of the people separated Julius Berliner from Jacob Myers, the deceased. The former got safely on the train with the crowd, just how, he was unable distinctly to say. After the train pulled in, it came to a stop, and the deceased, after it had stopped, was getting upon the cars which were at rest, when the train, without notice or warning, gave a sudden jerk backwards and then forwards, moving in each direction over the space of several feet. When the train made this movement the passengers were getting on, it having previously been brought to a stop to enable them to do so, and the little boy was mounting the steps on the platform of the car. The jerk backward knocked the boy off the steps of the car platform, and he fell between the station platform and the car, and the forward movement ran the wheels over his leg, crushing the bones so badly that his death ensued.

The defendant’s employees denied that the cars made any movement after coming to a stop to receive the passengers. The defendant claimed that the boy got on the train at Strauss’ Grove, 500 feet before it got to the station, and was stealing a ride to the station on the car platform, when in some way he fell off and was run over. But the jury re

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jected this theory and found the facts as claimed by the plaintiff, giving §2,500 damages.

Louis Levy, for resp’t; Charles J. Patterson, of counsel; Hinsdale & Sprague, for app’lt.

If the testimony of Philip Goldman, he true, the plaintiff’s case was made out.

The deceased, a small boy, according to the narrative of this witness, was attempting to get upon the platform of the defendant’s cars so as to go to New York, from the station at Far Bockawav, as a passenger.

The train had stopped at the station. It was a large train and was crowded. The boy got two steps up and as he was about to reach the platform, the car suddenly started and threw the boy under the cars and killed him. The witness seems to be candid and there is no impossibility in the story itself. The defendant gave evidence tending to show that the accident, which caused the death of the boy, happened before the cars reached the station. That the boy had got on at Strain’s Grove and had fallen off the train before it arrived at Far Bockaway, and was at the time not a passenger. The proof apart from the evidence of Goldman seems to discredit this theory.

The companion of the deceased, young Berliner, the brother, David Myers, in respect to the time and place of the accident, agree with Goldman.

The testimony of young Berliner is to the effect that both himself and the deceased were passengers, having purchased tickets, got at the same time, and were making the same journey. Berliner took the hand of the boy and started for the train after it had stopped to receive passengers, and that the crowd detached the boy from him. He got on and the boy was killed. The evidence fully supported the verdict and if no improper evidence was admitted, or proper evidence excluded, the verdict must be accepted as the truth of the surroundings and manner of the accident.

In such case the negligence is plain. Bartholomew v. N. Y. C. R. R. Co., 102 N. Y., 716 ; 2 N. Y., State Rep., 490. Among other witnesses one Sprague, a brakeman, was called as a witness who gave evidence tending to show that the accident happened before the train had stopped. He was asked by the plaintiff if it was not his duty to immediately inform the conductor of an accident and it appeared in the case that the conductor did not hear of it until some time, from four to eight minutes after it.

Connolly, another brakeman, who gave the notice, excuses the delay in consequence of the great crowd preventing approach to the conductor. The testimony does not

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fall within that which was prohibited in the case of the First National Bank v. Ocean National Bank ( 60 N. Y., 278

The plaintiff produced a witness, Taft, who testified that the deceased boy after the accident held a railroad ticket in his hand. It was proven that at the time the witness had taken down a statement from the boy and that he “ didn’t know what had become of it.”

The statement was to the purport that the deceased was at the station to see his cousin off, who was going to New York. The defendant subsequently offered to prove that a witness Curry, had copied the statement, and to give in evidence this copy.

It was solely offered to impeach Taft and not as a declaration of the deceased boy.

The paper was inadmissible.

First, the loss of the original was not shown and no subpoena to produce it was served. As a statement of the boy it is wholly unproven, except by an admission of Taft. As evidence against Taft it did not conflict with his testimony. He says “ he made mention about going to New York with his cousins, or to see his cousin go to New York; I don’t remember.”

The witness also testified that he might have said that the boy stated that he was at the station “to see his cousin off who was going to New York.”

The attention of the witness was not called to the time and place and to the persons to whom and in whose presence the statement was made. Hart v. Hudson Bridge Co, 84 N. Y., 56 .

The judgment should be affirmed, with costs.

Bykman and Pratt, JJ., concur.