Whalen v. Standard Gas Light Co. — 32 N.Y. St. Rep. 48

Majority

p. 48

Patrick Whalen, Resp’t, v. The Standard Gas Light Co. of New York, App’lt.

(New York Common Pleas, General Term,

Filed June 2, 1890.)

Headnote

Negligence — Evidence—Admissions oe agent.

In an action for injuries sustained while loading gas mains upon a. truck where it was claimed that the truck and means for loading it were alleged to be unsuitable and improper, evidence of declarations of defendant’s foreman after the accident that the truck was not a fit one to load pipe on is inadmissible.

Appeal by defendant from judgment in favor of plaintiff, entered upon verdict of jury.

J. W. Hawes, for app’lt; W. C. Reddy, for resp’t

The plaintiff, a laborer in the defendant’s employment, was injured while loading gas mains upon a truck, and it is.

p. 49

claimed that defendant furnished unsafe appliances for the work, the truck and the means for loading it being, as alleged, unsuitable and improper.

On the trial, a fellow workman of the plaintiff was permitted to testify to a declaration made of defendant’s foreman after the accident that the truck was not a fit truck to load pipe on. The exception to the admission of this evidence requires the reversal of the judgment Admissions and declarations of an agent after the fact, not part of the res gestae, are not admissible. An attempt was made to cure the error by a subsequent direction to the jury to disregard the evidence. This is unavailing. Erben v. Lorrillard, 19 N. Y., 299 ; Church v. Howard, 79 id., 415 .

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

Bookstavee, J., concurs.