139 N.Y.S. 887 | N.Y. App. Div. | 1913
The plaintiff sues for and has recovered damages for the death of her intestate, her daughter, resulting, as it is alleged, from the negligence of the defendants. The accident, which resulted in death, occurred at a point in Queens county, within the limits of the city of New York, where the highway known as Woodhaven avenue crossed at grade the line of the defendant companies. Both the highway and the railway ran at a slightly descending grade to the point:of intersection, and the crossing was to an extent a blind one, because the corner which was at the natural grade served as a mask between the highway and the railway, so that a traveler on the highway could not see an approaching train until within fifty or sixty feet of the track. The plaintiff’s decedent and four other persons, two women and two men, were driving in a wagon along Wood-haven avenue. As they crossed the railroad tracks they were struck by one of defendants’ trains running at a high rate of speed, with the result that every person in the wagon was killed. Without attempting to state the facts in detail, it may be said that there was a sharp conflict of evidence as to the care exercised by defendants’ servants and by decedent and the other persons in the wagon. One important question litigated
The only question which we deem it necessary to consider is whether or not'the defendants were entitled to read his evidence given on a former trial. This evidence at first was admitted and a part of it read to the jury. It was subsequently stricken out and the jury warned that they were not to consider it. Among those killed by the accident, a passenger in the' same wagon with decedent, was Jacob Cohen, a brother of decedent, and a son of the plaintiff, who caused herself to he appointed administratrix of his estate, and as such brought suit against the defendants. At the trial of that action the flagman was called as a witness and examined and cross-examined at length, the plaintiff being represented by the same counsel by whom she was represented on the trial of the present action. The question is whether defendants were entitled to read on the trial of this action the testimony of the flagman given on the trial of the Jacob Cohen action. It appears that Jacob Cohen and Ida Cohen were both the children of the plaintiff, Zipe Cohen, and were both unmarried.
Identically the same persons are, therefore, entitled to share in any recovery in either action.
The defendants rely upon section 830 of the Code of Civil Procedure which provides: “Where a party or witness has died * * * since * "x" * the trial of an action * * * the testimony of the decedent * * "x" taken or read in evidence at the former trial * * *. may be given or read in evidence at a new trial "x" * * of the same subject-matter in the same or another action or special proceeding between the same parties to such former trial or hearing * *
The defendants are the same in both actions. The “ subject-matter ” to which the evidence relates, to wit, the negligence or lack of negligence of defendants’ servant is the same in both
The case which I have quoted is not, of course, exactly parallel with the present, hut it is of value in the consideration of the question now before us, because it serves to illustrate the disposition of the courts to give to section 830 of the Code of Civil Procedure a liberal and reasonable, rather than a narrow and technical, construction. The admissibility in general of evidence given on a former hearing of the same subject-matter between the same parties did not. originate with the Code, but existed at common law long before a Code of Procedure was dreamt of. “The fundamental ground upon which evidence
That the evidence falls within the intention of the Code provision above quoted becomes even more apparent when we consider the nature of the two actions. As has been already said, the persons who would be entitled to share in a recovery of damages for the death of Jacob Cohen are the same persons entitled to share in a like recovery for the death of Ida Cohen. So that Zipe Cohen was not only plaintiff in both actions, but she represented in both the same persons. ' An action for damages for death was unknown at common law, and is solely the creation of statute. The cause of action is no part of the assets of decedent’s estate, and the damages become no part of the estate, but are exclusively for the benefit of the decedent’s husband or wife or next of kin. (Stuber v. McEntee, 142 N. Y. 200.) That, in this State, the statute gives the right to sue for such damages to an executor or administrator is purely fortuitous and was provided merely as a matter of convenience. It might equally have been left to the next of kin to sue, as it is in some States. If it had been so left the cause of action would have been the same, and the recovery would have benefited the same persons. In that case, the next of kin being identical, there could be no doubt that evidence, upon a subject-matter common to both actions, given on the trial of an action for damages for the death of one son or brother, could be used on the trial of a subsequent action for damages for the death of another son or brother killed by the same accident. The present case is no different in any essential particular. We are, therefore, of the opinion .that the evidence of the deceased flagman was admissible, and that it was error to strike it out. The evidence was of such a .character that its exclusion may have seriously prejudiced the defendant. Upon this ground alone, therefore, without considering the other exceptions, we are constrained to reverse the judgment and
Ingraham, P. J., McLaughlin and Clarke, JJ., concurred; Laughlin, J., dissented and voted for affirmance.
Judgment and order reversed, new trial ordered, costs to appellants to abide event. Order to be settled on notice.