179 N.Y. 7 | NY | 1904
The action was brought by the plaintiff, a passenger on the defendant's road, to recover damages for personal injuries. Her claim on the trial was that while alighting the car started and she was thrown down. The defendant's contention was that the plaintiff alighted from the car in safety and subsequently fell while walking to the sidewalk. On the cross-examination of the defendant's claim agent, a witness on its behalf, it appeared that the plaintiff's son-in-law had written a letter to the defendant's president about the accident which the plaintiff had suffered, which letter was referred by the president of the road to the claim agent. In offering the letter in evidence the plaintiff's counsel said: "As I understand their position, they are going to claim that this lady walked away from the car and fell herself after she had gone half way across Hancock street and fell in the gutter, despite that she has brought an action against the railroad company, seeking to fasten liability upon the railroad company, and in face of the fact that I have here the letter of her son-in-law, who wrote to this company the very day after the accident, the moment that the mother-in-law returned to his house, stating the nature of the claim and corroborating exactly her present statement." The trial court excluded the letter. Subsequently the plaintiff was recalled in rebuttal and against the objection and exception of the defendant the following question and answer were received: "Q. Did you tell just how the accident happened to your son-in-law the next morning? A. Yes, sir." That the question was improper and that the objection to it should have been sustained is very clear. That a party cannot make evidence in his own behalf by self-serving declarations is elementary. (Austin v. Bartlett,
The judgment should be reversed and a new trial granted, costs to appellant to abide the event.
PARKER, Ch. J., GRAY, O'BRIEN, MARTIN and WERNER, JJ., concur; HAIGHT, J., absent.
Judgment reversed, etc.