Weymouth v. Broadway & Seventh Avenue Railroad — 51 N.Y. St. Rep. 612

Majority

p. 612

William T. G. Weymouth, Resp’t, v. The Broadway & Seventh Avenue Railroad Co., App’lt.

(New York Superior Court, General Term,

Filed March 6, 1893.)

Headnote

1. Negligence — Evidence—Secondary.

Where the particular fact in question was whether the plaintiff on the day of the accident, for which he was suing for damages, had made a statement to a police officer inconsistent with his testimony at the trial, the entry in the police blotter offered as evidence of the fact is not admissible, as it is not the best evidence, that of the officer being better.

2. Same.

Such blotter was not admissible to contradict the officer, his attention not having been called to the statements therein, or to corroborate him, as for this it was but hearsay.

3. Same — Railroad—Rules.

In order to claim exemption under the General Railroad Act, Laws of 1850, chap. 140, § 46; which exempts a company from liability for accidents occurring in violation of its printed rules, the facts must be pleaded.

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

Redington & Mayer, for resp’t; Root & Clarke, for app’lt.

This is an appeal from a judgment entered upon a verdict.

The trial judge did not err in refusing to allow in evidence the entry in the police blotter. It was not admissible as proof of what the plaintiff said, for it was not the best evidence; that of Mr. McLaughlin was certainly better. It was not admissible to contradict McLaughlin, as his attention had not been called to the statements therein, and it was not admissible to corroborate McLaughlin, as for this it was but hearsay.

There was no error requiring reversal in the charge or refusals to charge. That part of the charge which referred to the lack of evidence of notice was not erroneous, for it did not appear that the notice was posted up or placed where it could be seen by the plaintiff. The only evidence upon the point is that “ it was on both sides of the inside of the car, about the center of the car.” As the evidence showed that the seats of the car were filled and persons were standing up, it became material to know with more particularity than is disclosed by the evidence just where the alleged notice was, in order that the jury could say whether or not it was a notice to the plaintiff or should be considered as such. It does not appear that with the seats filled the alleged notice was visible, and a guess is not permissible.

The refusal to charge defendant’s request “ that proof having been given that the notice required by the general railroad act was posted in the car on which the accident to the plaintiff happened, and that plaintiff. was riding upon the front platform and was upon the step of the car when injured, etc.,” was not error, as the defendant had not pleaded the facts which would entitle it to the exemption which it claims that the act in question' allows. The evidence required the submission of the questions of negligence and contributory negligence to the jury.

p. 613

Upon the whole case the judgment should be affirmed, with costs.

Gildersleeve, J., concurs.