Wooster v. Broadway & Seventh Avenue Railroad — 55 N.Y. St. Rep. 174

Majority

p. 174

Emma C. Wooster, Resp’t, v. The Broadway & Seventh Avenue Railroad Co., App’lt.

(Supreme Court, General Term, First Department,

Filed October 13, 1893.)

Headnote

Negligence—Evidence—Previous carefulness of driver.

In an action for injuries caused by a collision between the plaintiff’s carriage and a street car, evidence that plaintiff’s driver had previously-been a careful driver is irrelevant and incompetent.

Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes.

This action is for the recovery of damages for personal injuries received in a collision between a coupe in which the plaintiff was driving and defendant’s street car, caused, as it is alleged, by the negligence of the driver of the car. The plaintiff also seeks to recover special damages, the sum paid for the attendance of her physicians and nurse, and the expenses of repairing the coupe. November 21, 1887, the plaintiff was driving east on Forty-fifth street in a coupe drawn by one horse, and driven by a coachman who attempted to cross deféndant’s track in Broadway in front of a car approaching from the south. A collision occurred, by which

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the plaintiff’s left collar bone was broken and the coupe injured. The issues of fact upon which the case turned,;were; (1) Did the driver of the car negligently cause the collision? (2) Did the driver of the coupe negligently contribute to the accident? Upon these issues the testimony was conflicting, but the jury found both in favor of the plaintiff.

Root & Clarke (Bronson Winthrop, of counsel), for app’lt; W. T. B. Milliken, for resp’t

On the trial the plaintiff was asked:

“ Question. The coachman who was driving at the time, how long had he been in your employment ? Answer. Oh, he had been with me for five years then; he is with us still.

“Q. Do you find him careful or careless ? (Objected to by the defendant as immaterial, incompetent and irrelevant. Objection overruled. Defendant excepted.) A. Oh, very careful; a very careful driver, indeed; it was a gentle horse.”

Like evidence was given by the plaintiff’s husband, over the defendant’s objection and exception. This evidence was undoubtedly supposed to bear on the issue of contributory negligence of the plaintiff’s driver. It certainly had no relation to any other issue. The issue was not whether the plaintiff had negligently employed or continued in her service a careless or unskillful driver, nor whether he had been careful or negligent on previous occasions, but it was, “Did his negligence contribute to this accident?” This evidence was not relevant to this or to any issue in the case, and was incompetent. Jacobs v. Duke, 1 E. D. Smith, 271; Warner v. N.Y. C. R. R. Co., 44 N. Y., 465 , 472; Maguire v. Middlesex R. R. Co., 115 Mass., 239 ; Whitney v. Gross, 140 id., 232; Hays v. Millar, 77 Pa. St., 238 ; Whart. Neg. § 169; Whart. Ev., § 40; Abb. Tr. Ev., 584. It has been many times held that it is not competent for a plaintiff to give evidence that the person by whom the alleged negligent act was committed had previously committed similar acts, or that he was generally negligent or unskillful. The same rule is applicable to a plaintiff seeking to show that the acts of her servant did not contribute to the accident.

The plaintiff was permitted to show on the trial, over defendant’s objection that it was “ incompetent, irrelevant and immaterial," the expenses of her cure and of repairing the coupe. It appears that she is a married woman living with her husband, and the presumption is that he is liable for and discharges the ordinary expenses of the household and of the care of his wife and family. Before the plaintiff could be entitled to recover for those items, it was necessary for her to show that the' expenses were paid out of her own estate. This was not done. But the objection raised to this evidence was not as specific as it should have been. The objection did not call specifically to the mind of the court and of the plaintiff’s counsel that the evidence was objected to on the ground that the plaintiff was not, but that her husband was, entitled to recover for these items,- without showing that she had personally paid the charges or had become

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liable to pay them. Had this objection been made, it might have been obviated on the trial by showing that the plaintiff had .a personal estate and had paid the charges out of it, or that she has become liable to pay them. Tliomp. Trials, § 693 et seq. But we think, for the first error discussed, that a new trial should be had. The question of negligence and of contributory negligence is adose one, and we cannot say that the erroneous evidence did not influence the jury. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., and O’Brien, J., concur.