116 N.Y.S. 59 | N.Y. App. Div. | 1909
This is a statutory action to recover for the death of Paul Frederick Brauer, which was.caused by a collision between one of the defendant’s street cars going northerly on Aqueduct avenue, in the vicinity of Featherbed lane, in the borough of the Bronx, at about seven-thirty o’clock in the evening on the 3d day of December, 1906, and a wagon in which the decedent was riding. It was a dark night. Decedent was traveling in the same general direction that the car was going, and he was carrying no light on his wagon, as required by ordinance of the city. At the time of the collision the decedent was either traveling along the track or was crossing it diagonally. The car was going very fast, but it had the usual headlight and lights in the interior. The decedent was killed instantly. The questions of freedom from negligence on the part of the decedent and of negligence on the part of the defendant were close questions of fact on the evidence adduced upon the trial. An item of evidence bearing upon these questions of fact was received, over objection.and exception duly interposed and taken by the defendant, which we think requires a reversal. The court received, upon the ground that it was admissible as part of the res gestae, evidence of a declaration made by .the motorman within a few seconds after the collision. A passenger who was seated within the car arose on hearing the motorman sound the gong just before the collision occurred, and stepped to and opened the front door, and was permitted to testify, over objection and exception of the defendant, that either within four or five seconds after the collision occurred or after the body of the decedent was removed from under the car — the witness haying testified both ways on that point — he heard the motorman say : “ He bothered me all across the bridge.” In any view of the testimony of the witness, the collision had taken place before he heard the motorman make this statement, and, therefore, it was a declaration relating to a past event. The statement of the motorman was not made in answer to a question by anybody, and it does not appear that any one save the passenger was in sight or within hearing distance. It appeared from other evidence in the case that the car had passed over a bridge within a few hundred feet of the scene of the accident; and there was evidence tending to show that a wagon was on the track ahead of the car at that point and that the wagon in which
It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Ingraham, McLaughlin and Scott, JJ., concurred ; Patterson, P. J., dissented.
Judgment and order reversed, new trial ordered, costs to appellant to abide the event.