205 N.Y. 267 | NY | 1912
The action is to recover the damages sustained by the plaintiff through the death of the intestate caused by the alleged negligent operation of a car of defendant upon its track in the borough of Brooklyn. The judgment for the plaintiff, entered upon the verdict of the jury, has been affirmed by the Appellate Division.
One Kelly was a witness for the plaintiff and gave material testimony in his favor. On cross-examination, he was shown a typewritten statement, to which his name was subscribed, describing the circumstances of the accident and contradicting in material particulars his testimony. He testified that the statement was written in his presence by the operator of a typewriter, who while making it asked him questions and wrote on the typewriter when he had answered and when it was done he signed his name to it and the signature thereto was his; that he did not read it over or swear to it. In form it was sworn to before a commissioner of deeds.
The defendant, thereupon, offered in evidence the statement and upon the objection of the plaintiff that it was incompetent, it was excluded. This ruling, duly excepted to, was error prejudicial to the defendant.
Any statement of a witness made out of court, orally *269 or in writing, if contradictory of a material part of his testimony, may be, if properly proven, introduced in evidence, not as substantive proof of the truth of such statement, but as tending to discredit him. If it is sought to prove the expression of an opinion inconsistent with the testimony, it is enough if the opinion is so incompatible with the facts testified to by the witness that an honest mind knowing the facts would not be likely to entertain the opinion. Repugnant statements or contraries cannot be true and the fact that the witness has made them tends to show that he is untrustworthy through carelessness, an uncertain memory or dishonesty. Nor need there be a direct and positive contradiction. It is enough that the testimony and the statements are inconsistent and tend to prove differing facts.
A witness cannot be impeached by statements alleged to have been made by him before or after he has testified until he has been adequately warned by the cross-examination that those statements will be later offered against him and thus he or the party calling him be enabled to correct the testimony given or prepare a denial or an explanation of the statements. In case the statements are oral, the warning is given by asking the witness, in substance and effect, if he did not at a given time and place in the presence of or to a person or persons specified make the alleged contradictory statements. (Patchin v. Astor Mut. Ins.Co.,
Under the rules we have stated, the trial court erred in excluding from evidence the offered statement upon the ground that it was incompetent or that the witness had said that he did not read it. The objection and the ruling show that it was not excluded because offered out of the proper order of proof.
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, HAIGHT, WERNER and CHASE, JJ., concur; WILLARD BARTLETT, J., absent.
Judgment reversed, etc.