90 N.Y.S. 1025 | N.Y. App. Div. | 1904
Lead Opinion
This action was brought to recover damages for injuries claimed to have been received through the negligence of the defendant. So far as material the facts are as follows : The plaintiff lived on One Hundred and Tenth street and was employed near Twenty-third street and Seventh avenue. He took one of defendant’s cars on Broadway and was carried to Fifty-ninth street, where he changed to a Sixth avenue car. Having procured a transfer he left the Sixth avenue car at Fiftieth street to take a horse car going down Seventh avenue. The car barn of the defendant was on Fiftieth street and the car which the plaintiff desired to take was then in the barn. He entered the place where the car was standing, being preceded by a lady who got upon the car. The driver of the car was standing on the platform ready to start. No conductor was upon the car. The plaintiff took hold of the rail of the car and while stepping up, the driver suddenly started the same and the plaintiff was thrown against an iron pillar, his collar bone was broken, he was rendered unconscious and otherwise received injuries. At the close of the plaintiff’s case the defendant moved to dismiss the complaint upon the ground that there was no proof of any negligence upon the part of the defendant. The plaintiff asked to go to the jury upon the evidence. The latter motion was denied, the complaint was dismissed, and from the judgment entered thereon this appeal is taken. It is not necessary that we determine whether the evidence was sufficient to show negligence or not, as it stood at the close of the trial, as we are of opinion that error was committed in the exclusion of evidence which was offered, which was material to the case, and had it been received it, together with that already adduced, might have established a case requiring the court to submit the question of negligence and contributory negligence to the jury for their determination.
O’Brien and Laughlin, JJ., concurred; Ingraham and McLaughlin, JJ., dissented.
Dissenting Opinion
This is the ordinary negligence action to recover damages for personal injuries alleged to have been sustained by the sudden starting of one of defendant’s cars. According to the uncontradicted proof the plaintiff attempted to board the car while it was in a place where it was stored and before it had been run out upon the tracks. There was no proof that the defendant’s servants in charge of the car knew or had reason to believe that the plaintiff was getting on the car when it was started, nor that by long and open user on the part of the public there was an implied invitation to enter the car at this place. The plaintiff, therefore, failed to prove that the injuries were the result of defendant’s negligence. But it is claimed that error was committed during the course of the trial which necessitates a reversal of the judgment, and in this I am unable to concur. On the redirect examination of the plaintiff he was asked the following questions: “ Had you gotten on cars at that place before ? ” “ Do you know what the custom was at that time with regard to passengers boarding cars at that point ? ” Both of these questions were objected to, the objections sustained and exceptions taken.
It will be noticed in the first place that the questions were not asked until the redirect examination of the witness, and they were not directed towards any subject called out by the cross-examination. It is generally understood that a re-examination must be confined to new matters brought out on cross-examination, and if directed to other matters it is, to a great extent, discretionary with the court whether or not to permit the examination. (People v. Buchanan, 145 N. Y. 1.) Here the witness had been fully examined on the direct examination, and I do not think it can be said that the court abused its discretion in not permitting the plaintiff to prove, on the redirect examination, what he ought to have proved, if at all, on the direct examination. It is going a good ways to hold that the discretion was so far abused as to require the reversal of the judgment.
I do npt think the court erred in sustaining the objections, As
The objection to the other question, if it be assumed that the answer would have proved what is claimed, viz., a custom on the part of persons to enter the car at this place, was properly sustained, inasmuch as the answer would have been a conclusion of the witness. The custom, if one existed, could only be established as a fact by evidence showing what had taken place; that persons had entered the car at this place, the frequency with which they had done so, and under what circumstances, and from these facts it would be for the jury so say whether a custom existed. (Jones v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 187.) The answer to the question would not have tended to establish a custom; on the contrary, at most, it, without other proof, would have tended to show the witness’ knowledge, and this, standing alone, was immaterial.
I think the judgment should be affirmed.
Ingraham, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.