176 A.D. 453 | N.Y. App. Div. | 1917
Lead Opinion
In this action to recover for injury to property received in collision with appellant’s wagon, the following evidence was received upon the direct examination of the plaintiff: “ Q. Did you have any conversation with the driver of the Borden’s milk wagon ?” and answered, “Yes, sir. * * * Q. When did you have this talk with Borden’s man ? A. Right after he killed the horse. Q. How long after the shaft struck the horse, was it ? A. Right away. Q. Can you say about how many minutes ? A. In about three or four. Q. Three or four minutes ? A. Yes. Q. As soon as you got off the wagon he
Jenks, P. J., Thomas and Stapleton, JJ., concurred; Putnam, J., read for affirmance, with whom Carr, J., concurred.
Dissenting Opinion
Plaintiff’s horse was killed by the fault of both defendants. The Heins Express Company has not appealed. Borden’s Condensed Milk Company does not attempt to contest the merits. Just as the shaft of the Borden wagon, swinging around, impaled plaintiff’s horse, which fell, Borden’s driver jumped down, exclaiming “It is my fault.” It was spontaneous thrown out in the view of the horse’s death struggles. The witness first said this had been “right away ” after the blow; although he followed this by saying it was “ three or four minutes ”— probably as inexact as most such estimates of periods of past excitement. The driver’s utterance was a natural outburst of feeling, not an explanation or excuse given out after the transaction had entirely passed. It was admissible under _ Scheir v. Quirin (77 App. Div. 624); Hanover R. R. Co. v. Coyle (55 Penn. St. 396); Chamberlayne on Ev. (§ 1345). The
Carr, J., concurred.
Judgment and order reversed and new trial granted, with costs of this appeal to appellant to abide the event.