Hine v. Cushing

I concur in the opinion of Mr. Justice Daniels upon the general merits of this controversy. But I am unable to agree with him that the judgment must, nevertheless, be reversed because of errors in the admission and exclusion of testimony.

First. With regard to the witness Miller. The defendant was not surprised by the testimony of this witness, nor does he seem to have been a hostile witness. The excluded questions were not necessitated by anything which transpired upon the direct examination. Upon that examination there was neither inconsistency nor want of recollection. The excluded questions were put upon the re-direct, after the witness, upon cross-examination, had admitted making an affidavit, somewhat modifying his direct testimony. The rule laid down in Bullard v. Pearsall ( 53 N. Y., 230 ), which is evidently the case referred to by Justice Daniels, does not apply to such a situation.

The defendant had a right, upon the re direct, to inquire into the circumstances attending the making of the affidavit. He could also ask the witness whether he still

The defendant could not, under such circumstances, and under the guise of a cross-examination of his own witness upon the affidavit, make direct testimony of the previous declarations.

It was not a complete lapse or change of memory with which the party here calling the witness had to contend, but merely the weakening of his direct testimony by cross-examination. That did not justify an inquiry into the witness’ testimony in other cases. A party calling a witness, who is surprised by testimony contrary to his expectations, is permitted to interrogate the witness as to previous declarations inconsistent with the testimony “for the purpose of probing his recollection, recalling to his mind the statements he has previously made, and drawing out an explanation of his apparent inconsistency.” Rapallo, J., in Bullard v. Pearsall (supra). Here, however, there was no inconsistency between the testimony given and the previous declarations. The direct testimony was not, perhaps, quite so strong as the previous testimony, but it was substantially the same. At all events, the previous testimony was not admissible, nor could the witness be interrogated with regard to it, merely for the purpose of giving color and strength to the present direct testimony, there being no inconsistency between the latter and the former. The inconsistency, if any, was in the affidavit, to which the witness’ attention was called upon cross-examination. But the rule does not extend to such surprises of cross-examination, nor to declarations inconsistent with affidavits used to weaken perfectly consistent direct testimony.

My conclusion is that the defendant was deprived of no legal right, by the exclusion of these declarations.

Second, as to the admission of the entire affidavit. This was 'unobjectionable, as the referee expressly limited its use to its proper function, namely, the showing of statements inconsistent with the witness’ present testimony. The referee then added: “The statements in the affidavit are not admissible as evidence for any other purpose.” And when the defendant’s counsel repeated his objection in another form, the referee again said:

“I overrule the request, on the ground that the whole of the affidavit must be admitted in evidence, but holding, at the same time, that the affidavit constitutes no proof of the facts in the portion of the affidavit which has been read.”

Third, as to the admission, upon Hatfield’s cross-examinatian, of the building law applicable to the city of Few York. This was immaterial, and could not possibly have prejudiced the defendant. It was also superfluous, as the laws of the state can be referred to without being put in evidence.

Fourth, as to the hypothetical questions put to the witness, Robertson. Justice Daniels concedes that this evidence was both useless and harmless. For that very reason I cannot assent to the granting of a new trial merely because the questions put to this witness were intricate and prolix, nor because of the manner in which this useless and harmless testimony was taken.

In my judgment, substantial justice was done in this case, and whatever errors may have been committed in the course of a long and earnestly contested trial, were trivial and unimportant. They were not, at all events, sufficiently grave to affect the result, or to warrant the disturbance of the judgment.

The judgment should be affirmed, with costs.

I concur m the conclusion arrived at by Mr. Justice Barrett, that the judgment in this case should be affirmed, with costs.

The case at bar differs from that of Judd v. Cushing (19 N. Y. State Rep., 722), in that in the latter case the buildings were separate and independent, having no connection except a shaft running through the wall, which supplied the power. In the case at bar, the buildings were communicating, were used as a single building and having a common stairway and elevator, and thus devoid of all the elements of distinctness and separation which were so apparent in the case of Judd v. Cushing.

The judgment was recovered for the loss sustained by the plaintiff in the burning of a building on the 5th of May, 1885, the fifth story of which was occupied by him. A controverted fact in the case was whether the defendant was the owner of this and an adjoining building and in their possession at the time when the fire occurred. Evidence was given upon the trial from which these facts could be readily, as well as reasonably, inferred. In this evidence were statements and declarations of George L. Abbott, who had the superintendence and management of the buildings, asserting the fact of his agency. A part of this evidence consisting in his admissions, may not strictly have- been admissible as proof of the agency, although it tended to establish the fact that his own understanding'was that he was acting only in that capacity. It will not be necessary critically to consider the admissibility of all this character of evidence, for the reason that the admissible

The property was situated in the city of Brooklyn, and it was devoted, through leasings, to different kinds of manufacturing industry. The motive power for the machinery employed was supplied by the defendant, and the occupants of the different parts of the buildings applied it to their own machinery by bands passing over the main lines of shafting propelled "by the engine used and operated as a part of the defendant’s property. Alterations and repairs in the building were made under the direction and authority of Mr. Abbott, the defendant’s agent. They consisted in part in the construction of a new pier, for the support of one of the main girders of the building near its westerly end. The old pier was found to be out of line. The new pier was built upon the same foundation, but, instead of terminating under the girder, the timber was cut in two; a portion of it was removed, and the pier carried up through it and through the story above. This work was commenced on Wednesday afternoon, the twenty-ninth of April. The pier was built on Thursday and finished by putting a capstone upon it on Saturday. To afford an opportunity for building the pier in this manner, jack-screws were placed under the ends of the girder which sustained the floor of the building, without the aid or assistance of the pier, and posts between that floor and the floor above sustained the upper parts of the building. The screws remained under the girder until Tuesday morning, the fifth day of May, when they were removed by the direction of this agent, and the building allowed to settle upon the pier. Immediately after the weight was, in this manner, placed upon the pier, which was larger than that previously maintained in- the building, the evidence tended to establish the fact to' be that the floor above gave way and the others above it followed.

In the business carried on by different tenants in the building, fires were used and employed, and by the falling of the floors these fires were brought in contact with combustible material, setting fire not only to this building, but afterwards to the one occupied by the plaintiff, and thereby destroying the property in controversy.

It was strenuously objected on the trial before the referee, and the objection has been urged in support of the appeal, that under the principle maintained by the case of Ryan v. N. Y. Central R. R. Co. ( 35 N. Y., 210 ), no-

He was a tenant in the occupancy of the building under the defendant. Between this building and that in which the fire originated, a space was appropriated to the maintenance of the elevator, closets and stairways. And each building communicated with this space by means of doors. The evidence tended to prove the fact, and it was not in this respect seriously controverted, that through the open spaces, the means of passing from one building to the other were supplied. The elevator was connected with each story of the building, above the ground floor, and it communicated on the east with the building occupied by the plaintiff, and on the west with that in which the fire occurred. Both the stairs and the elevator seem to have been used for the joint convenience of each of these structures. And after the fire commenced it immediately burned its way through the space occupied by the elevator, closets and stairs, into the building in which the plaintiff carried on his business, and it progressed so rapidly as to preclude the ability of removing from the fifth story of the building any of the plaintiff’s machinery or other property, which was there situated. Whether the defendant, as the owner and landlord of these buildings, would be legally liable for a destruction of the property by fire in the building occupied by the plaintiff, was not a point in controversy in Judd v. Cushing (supra). And what was said incidentally in the decision of the case by way of reference to that point, is, of course, not controlling in this case. The facts as they have now been presented for decision, justify the referee in finding as he did, that the proximate cause of the plaintiff’s loss was the fire produced through the alleged negligence of the defendant’s agent, in the building in which the floors were shown to have given away. There was no intervening fact or circumstance, as there was in the case of Ryan v. N. Y. Central, etc. (supra), by which the fire was carried from one building to the other. But it proceeded from the place when it commenced, by its own continued ravages into this connected building occupied by the plaintiff, and there caused the destruction of his property.

The cause of this destruction was therefore the fire in the westerly building. Naturally and inevitably it burned its way through until the other building was reached and consumed. And when that is sustained by the evidence as the fact, the party by whose negligence the fire was in the first instance caused, is the party producing the destruction of the property in controversy. This subject was father considered in Webb v. Rome, etc., R. R. Co. ( 49 N. Y., 420 ), where the fire which was communicated by a locomotive upon the defendant’s railway, to a tie at the side of the track, proceeded from the tie to' an accumulation of weeds

The principle Was further considered in Milwaukee, etc Railway Co. v. Kellogg ( 94 U. S., 469 ), where the law was declared and considered to be that, “The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement.” * * * “The question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together, as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of application. But, it is generally held, that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Id., 474, 475 . Anri this case, by the evidence, has been brought within the direct application of the principle here enunciated. For no-intervening cause whatever arose to change or accelerate the progress of the fire after it originated, but it progressed by its own natural action and momentum into the building occupied by the plaintiff, and there produced the destruction

And that there was evidence supporting the conclusion of the referee that the fire was caused by the negligence of the defendant’s agent, abundantly appears from the case. This pier was a new and undried structure at the time when the weight of the floors of the building was let down upon it. As the evidence presented the case, there was reason for believing that the pier gave way from this weight, and in that manner precipitated the fall of the floors. And the natural result or consequence of that fall was the firing of the building, and the destruction of the adjacent structure occupied by the plaintiff.

And were it not for other rulings arising in the course of the trial, there would seem to be no difficulty in the way of sustaining this recovery. For while it included the loss of profits, that loss was reasonably well maintained by the evidence. And when that may be the case, under the authority of Wakeman v. Wheeler, etc., Co. ( 101 N. Y., 205 ), such profits may be allowed as a part of the damages.

The screws were applied to raise the floors and support the building, while "the pier was being constructed, by Frank W. Miller, a witness produced and sworn on behalf of the defendant. His counsel, considering that the testimony of this witness was not as favorable to him as it should have been, called his attention to what was stated to be his evidence given upon the trial of the Judd Case. After this evidence was read to the witness he was asked whether he remembered giving that testimony. This was objected to on the part of the plaintiff as irrelevant, incompetent and immaterial, and because it did not appear that it was claimed that the reading of the testimony accurately gave what the witness had sworn to in the other case.

This objection was sustained and the answer was excluded, and to that ruling the defendant’s counsel excepted. There is no reason presented by the case for supposing that the evidence was in any respect inaccurately read to the witness. The questions and answers, on the contrary, indicate the probable accuracy of the reading. And it was relevant and competent for the defendant to draw the attention of the witness to his evidence upon the preceding trial by way of refreshing his recollection, as that was proposed to be done on this occasion, and then to ascertain from him whether his testimony as it had been given before the referee, was strictly accurate in these respects or not. Similar inquiries were made of this witness as to other portions of his evidence and he was not permitted to answer those inquries, and to the rulings excluding such answers the defendant again excepted.

Eor in Taggart v. Murray ( 53 N. Y., 233 ), it was held by the court that the party in whose favor a witness may be sworn and examined in the trial has the legal right to interrogate the witness in this manner to revive and correct his recollection. The testimony of this witness bore directly upon the fact of the negligence of the defendant’s agent in the conduct of these repairs or changes which were made in the building. And that fact was not so conclusively established by the other evidence upon the trial as to render the exclusion of these answers harmless. By these rulings the defendant was deprived of a legal right to refresh the recollection of his witness, and in that manner if it could be done, to obtain more favorable answers from him than those which he had given.

The plaintiff’s counsel was also permitted, -upon the cross-examination of the witness, Robert F. Hatfield, to interrogate him concerning the building laws applicable only to buildings in the city of New York, and having no application whatever to the premises in controversy. And after interrogating him upon this subject, the sections of the law were allowed to be read upon the trial. This was obviously improper, for these enactments could have nothing whatever to do with this controversy.

The referee also permitted an affidavit made by the witness, Miller, to be read to contradict his testimony. It was urged by the defendant’s counsel that portions of the affidavit having no relevancy to the answers of the witness should be excluded. But that was overruled by the referee, and the entire affidavit was allowed to be read. This was improper, for what the plaintiff had a right to do, and all that he was entitled to use the affidavit for, was to contradict the statement made upon the inquiry put' to the witness, ¡Miller. That part of it was admissible, but the residue should have been excluded.

Hypothetical questions of an intricate and prolix character were put to the plaintiff’s witness Robert H. Robertson. One of these questions, including a great variety of subjects, extends from folio 2560 to 2572 of the case, and it was then in material respects changed and modified, and the witness was allowed against the defendants’ exception to answer this question. That should not have been done, for the reason that the question itself was too intricate and prolix to secure any advantageous evidence in the case. Perhaps in that respect, and from the answers given by

These errors in the admission of evidence cannot be disregarded, particularly those relating to the examination of the witness Miller, and on their account a further trial of this action will become necessary.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.