McCallan v. Brooklyn City Railroad — 15 N.Y. St. Rep. 843

Majority

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John McCallan, Jr., an Infant, by John McCallan, his Guardian ad litem, Resp’t, v. The Brooklyn City Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 16, 1888.)

Headnote

1. Witnesses—Cross-examination—When a party is bound by his adversary’s "WITNESSES—New or immaterial matter.

On the cross-examinatiorb of one of the defendant’s witnesses he testified that he did not, on the day after the accident, say that he had seen the accident and was going to work a position out of it for himself, that the defendant was going to appoint him conductor, etc. The plaintiff was then allowed to contradict this testimony and introduce evidence as to these

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statements made by this witness. Held, error; that the plaintiff had a right t'o ask these questions on the cross-examination, but having obtained the answers, he was bound by them, and was not at liberty to call witnesses in contradiction. These questions all involved collateral matters. The rule is well settled that if a party examines his adversary's witness on new and immaterial matter he is bound by his answer.

2. Same—Hostility of witness—When it may be proved—How proved.

Held, that hostility or favor towards either party may be proved by the declarations of the witness, and if he denies making the declarations he may be contradicted, but there is a wide distinction between showing the relations of the witness to either party and proving his statements made in pais inconsistent with his testimony upon the stand.

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

Morris & Pearson, for app’lt; Charles J. Patterson, for resp’t.

—This is an appeal from a judgment entered upon a verdict and an order denying a motion for a new trial.

The action was for personal injuries sustained by the plaintiff by being knocked down and run over by one of defendants’ cars. During the trial a witness named Mc-Larty was examined for the defendant and testified at length that he saw the accident and how it happened. On cross-examination he was asked by plaintiff’s counsel ‘ ‘ Did you not say to this man (Johnson) that day after the accident that you had seen the accident and that you were going to work a position out of it for yourself ?” also “And that the defendants were going to appoint you a conductor ?” also “Did you show a piece of paper to this man and say it was a check for $500 payable after the trial?” also “Didn’t you say to him he had better take you right to McCallan that you had seen the accident and could be of some good to him?”

Johnson was then called and permitted under objection to testify in contradiction of McLarty, in substance that he did speak about making a position out of the company. That he held up a paper and said: “this is a check for $500 payable after the trial, but I can get it before if I want it,” and that he stated he could be of use to McCallan.

Another witness, Dwyer, was also permitted to testify under objection in contradiction of McLarty in regard to his denial that he had said he was going to work a position out of it for himself.

The plaintiff had a right to ask McLarty on cross-examination these questions, but having obtained the answers he was bound by them and was not at liberty to call witnesses in contradiction.

These questions all involved collateral matters. It was not a case of an attempt to show that he had made state

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ments inconsistent with his testimony upon his direct examination, but was, in effect, an insinuation that the defendant had bribed the witness to swear falsely, and to show that he had made false statements to several persons, not in relation to the accident but in regard to his own private matters.

It is not permitted to impeach a witness in this way. The defendant could not be called upon to try any issue except that made by the pleadings.

The rule is well settled that if a party examines his adversary’s witness on new or immaterial matter, he is bound by his answers. People v. Cox, 21 Hun, 47 ; affirmed 83 N. Y., 610 ; Stokes v. People, 53 id., 175; Sherman v. D. L. and W. R. R. Co., 11 N. Y. State Rep., 318.

This testimony was highly prejudicial to the case of the defendant, and undoubtedly had a tendency to cause the jury to disregard entirely the testimony of McLarty as it is evident if his story had been believed the verdict would have been for the defendant.

The respondent attempts to justify this by invoking the doctrine that it is always competent to show that a witness is hostile to the party against whom he is called, also to show the relations that exist between the witness and the party’for whom he is called. We do not think this case falls within that rule. Hostility or favor towards either party might be proved by the declarations of the witness, and if he denied making the declarations he might be contradicted, but there is a wide distinction between showing the relations of the witness to either party and proving his statements made in pais inconsistent with his testimony upon the stand. There was no evidece that the witness McLarty was unduly friendly to the defendant or inimical to the plaintiff, nor was there any evidence to justify submitting to the jury the question whether McLarty had attempted to peddle his testimony first to one side and then to the other. The case of Height v. People ( 50 N. Y., 392 ), cited by respondent simply holds that it is compent to show statements made by the witness inconsistent with his testimony. In Newton v. Harris ( 6 N. Y., 346 ), it was held competent to show hostile feelings of the witness.

The case of Shultz v. Third Ave. R. R. Co. ( 89 N. Y., 242 ), was similar in principle to the one last cited, but it lays down the doctrine that evidence to show feeling and bias must be direct and positive and not very remote. Hone of the cases cited by respondent go to the length of sustaining his contention.

Ho answer can be made to the statement that plaintiff was allowed to impeach McLarty upon collateral matters. If it be true that McLarty did say he had seen the accident

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and that he intended to get a position; that he recommended McCallan to employ Gru, and did go with the driver to the railroad office, and did say he had a check for $500, it does not follow that his story of the accident was untrue, and none of these statements were inconsistent with his testimony.

For error in admitting this evidence there must be a new trial.

Barnard, P. J., and Dykman, J., concur.