Bennett v. Hoffman
289 F. 797
2d Cir.
1923
Check Treatment
MAYER, Circuit Judge

(after stating the facts as above). The opposing testimony of witnesses, as to just how or why the collision of the cars occurred, need not be recited. The plaintiff introduced testimony intended to show that Coughlan, the chauffeur of defendant, was driving at a reckless rate of speed, whereas Coughlan testified that he was driving at a rate of about 30 miles an hour. The rate;of speed was a critical question in a sharp and.close controversy, as to the negligence of defendant and the contributory negligence of plaintiff. Coughlan testified on behalf of defendant. On cross-examination he was asked, •

“Q.'Well, did you state at the scene of the accident after the accident, to a group of men of which Oscar R. Streaker was one—did' you make the statement, T guess my boss will- stop pushing me; he is always pushing me along to make time?”’

To this question the objection interposed by 'counsel for defendant was properly sustained. Later in the trial, and on rebuttal, the deposition of Streaker was read, and the question infra was asked. Although objection to this question was then sustained, the trial judge stated that he would pass on the question later. At almost the close of rebuttal, the question in Streaker’s deposition thus objected to was read again, and then allowed, and answer made as 'follows:

“Q. Did you [Streaker] hear the chauffeur’ say in substance, while you were present and he was sitting on the cushion and in the presénce of these others, did you hear him say in substance the following: T guess my boss will stop pushing me;, he is always pushing me. along.to make time?’ A. Yes.”

• The testimony showed that Streaker did not arrive at the scene of the accident until long after tiie accident. It will be noted that the question does not refer, to any acts of Coughlan, but to an alleged admission by Coughlan of instructions given to him by his employer. To allow this question and answer was error for two reasons.

First. The statement "of Coughlan was made outside of the scope of his employment, and hence was heársay as to defendant. Luby v. Hudson River R. Co., 17 N. Y. 131; Anderson v. Rome, W. & O. R. Co., 54 N. Y. 334; Sherman v. D., L. & W. R. Co., 106 N. Y. 542, 13 N. E. 616.

*799 Secondly. In order to introduce rebuttal, for the purpose of impeaching the testimony of a witness given on cross-examination in respect of some admission or contradictory statemént, the attention of the witness must be called to such admission or contradictory statement. The rule is well stated by Collin, J., in Larkin v. Nassau Electric Railroad Co., 205 N. Y. 267, 98 N. E. 465. In the case at bar, Coughlan was not permitted to answer, and thus his testimony was a blank in respect of this question. The mere fact that he was asked is obviously of no consequence, in view of the fact that he was not permitted to answer the question put to him.

Thus, the situation was that, on rebuttal, independent new testimony was introduced to impeach Coughlan’s'testimony in regard to subject-matter as to which Coughlan, in legal effect, had' not been interrogated. Sherman v. D., L. & W. R. Co., supra; Kay v. Metropolitan Street Rwy. Co., 163 N. Y. 447, 57 N. E. 751; Amsler v. City of New York, 172 App. Div. 63, 158 N. Y. Supp. 219. Testimony on rebuttal as to -conversations had with the witnesses Magan and Kenney, several months after the accident, was also inadmissible, because in violation of the rule as to rebuttal, stated supra.

While, on the testimony, the question of contributory negligence was for the jury, the other points argued at bar may not arise upon a new trial, and hence need not now be discussed.

Judgment reversed.