Thon v. Rochester Railway Co. — 62 N.Y. St. Rep. 642

Majority

p. 642

Charlotte Thon, Resp’t, v. The Rochester Railway Company, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 17, 1894.)

Headnote

1. Evidence—Admissions.

Where a witness testifies to an admission made by plaintiff in the, German'language, and states the German words and their English equivalent, the plaintiff may show that the latter is different from that given tvy the witness.

3. Witness—Counsel.

Counsel is a competent witness for his client.

Appeal from an order setting uside a verdict in favor of, defendant and granting a motion for a new trial on the minutes,,

O. J. Bissell, for app’lt; Ivau Powers, for -resp’t.,

The action was to recover-damages for a Ipcdily injury, caused, as alleged, by negligence of a driver of a ho^’se car of the defendant, upon which the plaintiff was a passengelr, and from which she was alighting when the injury was received.'* One Wolff, a witness for the defense, testified that the plaintiff,- relating to' him the circumstances of the accident soon after its ; occurrence, told him, in effect, that in her haste to reach another car at the junction of the two routes she stepped from the car '.she was on while it was in motion, and thus fell to the ground; ‘that she had rung the bell once or twice for the car to stop, and. [that she did not know it was not allowed to stop on the intersection of the two streets. . On the cross-examination of this witness kt appeared that the statement made to him by the plaintiff was íl-j the German language, and he was asked to repeat it in Gerrna n. After protesting more than once.that he could not give thewmrdsof the plaintiff, he finally, in response to a direction of the c:ourt, gave what he declared to be in substance, as nearly as he could reproduce it, the statement of the plaintiff as made by her- -in German, which testimony, in German, the stenographer was u-cable to take. Subsequently, when the plaintiff'had the case, to i'epfiy, she called to the stand one of her counsel, Mr. .Jacob Spahn,, a competent German and English scholar, who testified that' he/ took-down in writing verbatim the German words which the yvitness Wolff, by his .testimony, attributed to the plaintiff in the «conversation testified to by him. The words so taken by Mr. Spahn were submitted to the witness Wolff, and he identified mem as the German words used by the .plaintiff, as nearly as he fjjould recollect .them. The plaintiff thereupon offered to prove bji Mr. Spahn what the meaning of those words was w,hen correctly translated into English. The evidence offered was excluded ,under the defendant’s objection, and plaintiff's exception to this ruling was the ground upon which the learned judge at the circuit granted the motion for a new ‘«.rial. We think 'be evidence offered was competent and admissible, and that for the er;w: of its exclusion the motion for a new trial was properly granted. The situation was one which did not call for an interpreter, but for a translator, and for that

p. 643

purpose Mr. Spahn was competent,, both- as a witness and as a German and English .scholar. His position as counsel for the plaintiff went only to his credibility. He was presumably the only person connected with the case who was at the same time interested and competent to recognize and identify with accuracy the German words which the witness Wolff attributed to the plaintiff This he .testified lie did, and reduced them to writing as they were spoken by the witness, and he produced them before the court. Those words, when thus secured and identified, were a part of the evidence in the case, .and, being such, it was necessary that they should be translated into English. The proposal of the court to permit the witness Wolff to .be recalled, and to be again asked for a German version of the statement of the plaintiff, and to permit that portion of his testimony to be interpreted to the jury, did not quite meet the situation. The witness had once given his version of the plaintiff’s statement in German. The words had been taken down and preserved. They were a part of the evidence already given in the case. It only remained to have them translated, in order that the plaintiff should have the benefit of the evidence if it should prove to be beneficial to her. Of course, all the evidence thus given and proposed to be given by the witness Spahn was subject to contradiction by the witness Wolff'as to the identity of the German words testified to by him, and by Wolff or any other competent witness as to the correctness of their translation. But that the plaintiff had a right that the jury should know what the testimony was when first given, and what was the meaning of the German words then testified to, we cannot doubt. The testimony excluded related to an alleged admission of the plaintiff closely affecting her cause of action, and it is impossible to say that its exclusion was not to the prejudice of the plaintiff. „ >

The order for a new trial should hie affirmed:

So ordered, with costs of this appteal to abide the event.

Haight, J., concurs; Lewis, J., ilissents.