191 A.D. 770 | N.Y. App. Div. | 1920
The infant plaintiff, five and one-half years of age, with his brother, seven years of age, were passengers upon one of the defendant’s street railroad cars on March 14, 1913. They were in charge of a nurse, a Polish girl speaking little English, who had been in the employ of plaintiff’s family for about a year preceding the accident. She had much difficulty in controlling the two children, who ran about the car and out upon the platform. The conductor put them back inside the car, but they would not obey the nurse. She chased them about the car and caught them, but they broke away from her from time to time and went out on the front platform. There is evidence that the motorman talked to them or joked with them. The nurse recovered them and brought them back in the car. As the car approached the terminal and was within fifteen or twenty feet of the end of the line, slowing up for its final stop, the motorman putting on the brakes, the boys got away from the nurse again, the elder boy went out on the front platform and jumped off the car. The plaintiff, the younger of the two, followed his.brother out on the platform and also jumped off the car, landing on his brother, which caused plaintiff to fall in such manner that his left leg went under the car wheel and was injured so that amputation was necessary between the ankle and the knee. The injuries alleged in the amended complaint are as follows: “ V. Upon information and belief that by reason of the said carelessness and negligence of the defendant and its employees in the operation of its said car the said plaintiff on or about the said 14th day of March, 1913,
The plaintiff charges negligence on the defendant’s part because the vestibule side doors on the front platform were not closed at the time of the accident, and also because the doors leading from the body of the car to the front platform were open. Plaintiff insists that it was the duty of the motorman or conductor to close and latch these doors while carrying children and knowing that they were running up and down the car beyond the control of their nurse, and also in permitting the children to stand upon the front platform.
The learned trial justice charged the jury that while the defendant railroad company was not a guarantor or insurer of the safety of its passengers, it was bound to use a high degree of care. He submitted to them the question whether the motorman and conductor exercised the high degree of care that was required of them by reason of carrying the child as a passenger, and whether in view of the antics of the two children they should have closed the doors leading from the body of the car to the platform, as well as the vestibule doors on either side of the platforms. He said: “ The defendant claims that they had no rule requiring the employees to close the doors and that, therefore, the employees were not guilty of negligence in failing to obey a rule of the company, but that whether or not they would keep the doors closed was a matter left to their discretion; and if you find that in their discretion, good judgment, reasonable care would require them to close the doors, I have to charge you that it was negligence on their part if they did not so close them as required by reasonable prudence. The defendant says that this car was being operated slowly and carefully and in good order, sound condition, over firm tracks, so that there would not be
The learned judge then told the jury that the plaintiff was too young to be charged with personal negligence and that it was the duty of his parents to see that he was left in care of a competent nurse, and that if the person in charge of the children was an unsuitable person, an incompetent person and could not manage the children and it was an unwise thing for the parents to put the children in her care, then the parents were guilty of negligence which was chargeable to plaintiff and he could not recover. He also instructed the j.ury that if the nurse, although competent, was negligent in caring for the children, the plaintiff could not recover. He continued: “ But here this plaintiff claims that this nurse was competent; that the parents are not guilty of negligence. Then it is claimed by the defendant that the nurse herself was guilty of
We are of the opinion that the learned trial judge imposed too onerous a duty upon the motorman and conductor. They were not obliged to act as assistants to the nurse in charge of
We think the verdict is against the weight of the evidence as to negligence on the part of the motorman and conductor and absence of contributory negligence on the part of the nurse, and we are, therefore, obliged to reverse the judgment and direct a new trial of the action.
But there are other exceptions urged by the appellant which call for consideration, in view of the new trial to be had. It appears that the case had been tried before, resulting, as we infer, in a disagreement. The second trial, which is now before us for review, took place in January, 1919. The nurse in charge of the children was examined as a witness for the plaintiff on the first trial. On this second trial the learned counsel for plaintiff proceeded to read the testimony of the witness from the minutes of the former trial, as he said, “ pursuant to section 830 of the Code of Civil Procedure.” The following colloquy took place between the court and defendant’s counsel: “ Mr. Crumb: I object, upon the ground that there has been no effort made to produce this witness at this trial. This woman was a nurse in charge of these children at this time and it is a very important feature of this case,
When this testimony was read there was no proof before the trial court that the witness was at that time a non-resident of the State of New York or that she was absent from the State. Nor was there any proof of effort made by the plaintiff to obtain her presence at the trial. The plaintiff insists that proof that at the time of the first trial the witness was a resident of the State of Vermont, that she came to this State at the request of the father of plaintiff to testify and that after testifying she was supplied with money and declared her intention to return to Vermont, was sufficient. Plaintiff's father testified to these facts, and he testified: “Q. That was the last you saw of her? A. Yes, sir. Q. Do you know of your own personal knowledge what has become of her since? A. No. Q. Have you made any efforts to get her here on this trial? A. No.” On this preliminary proof the learned trial judge overruled the defendant’s objection to the reading of the testimony. Some time later in the trial plaintiff’s father was recalled, and over the objection and exception of defendant testified that since the reading of the testimony, at the suggestion of plaintiff’s trial counsel, he had communicated with Rutland, Vt., to ascertain if she (the witness) was there. “ Q. Did you get a telegram back as to her being there? Mr. Crumb: Objected to as irrelevant, immaterial and improper. The Court: The objection is whether you can make a telegram evidence. Mr. O’Neill: I suppose if they insist on it. Q. Did you receive this telegram (shows witness paper) ? [Same objection. Objection overruled. Exception.] A. Yes, sir. Q. Did you telegraph to Mr. Robinson to ascertain if Dcimba was there? A. Yes, sir. [Objected to as irrelevant and
The fact that after the testimony was admitted in evidence over defendant’s objection and exception, plaintiff’s father at suggestion of counsel telegraphed to some man named Robinson in Rutland, Vt., to ascertain if the witness was in that city, and secured a reply, does not appear to help the situation very much. We are not informed who Robinson was, the telegram sent to him is not offered in evidence, the telegram in reply was excluded. Section 830 of the Code of Civil Procedure, so far as it relates to the objection and exception under consideration, reads as follows: “ Where a party or witness has died or become insane or, being a nonresident of this State has departed from the State * * * since or during the trial of an action now or hereafter pending, * * * the testimony of the decedent or insane person or of such absentee, * * * taken or read in evidence at the former trial or hearing, * * * may be given or read in evidence at a new trial or hearing or at a continuation of the same trial or hearing * * * or upon any subsequent trial or hearing, * * * between the same parties to such former trial or hearing or their legal representatives, by either party to such new trial or hearing.”
We think that the crux of this section is that the witness whose testimony is sought to be read is an absentee at the time the evidence is offered. The common law permitted the evidence of a deceased witness to be read as between the original parties or their privies (Shaw v. New York El. R. R. Co., 187 N. Y. 193), but this species of evidence was admitted ex necessitate. (Jackson v. Bailey, 2 Johns. 17.) It was necessary to show that the witness was dead, absence from the State was not enough because he might be found and examined upon commission. (Wilbur v. Selden, 6 Cow. 162; Crary v. Sprague, 12. Wend. 41.) When the Legislature extended the privilege to absentee witnesses, we think they meant witnesses who were actually absent from the State at the time their testimony was offered. The fact that the
It appears that upon the first trial of this action the defendant called as a witness one Shannon, the conductor of the car upon which the plaintiff was a passenger. Upon the trial now under review, the plaintiff after some few questions to a witness concerning the length of defendant’s railroad and the location of double and single tracks along the route, immediately called Shannon as his own witness upon the pretense that he desired to prove by him the existence of certain rules of the defendant corporation req firing the closing of the vestibule doors while the car was in operation. This was before any evidence had been adduced concerning the happening of the accident. The witness denied knowledge of such rules and this was followed by a disorderly and acrimonious examination of the witness Shannon, who was accused by the learned counsel for plaintiff of perjury and contradictions of his testimony upon the first trial and of statements made to the plaintiff’s counsel. In Power v. Brooklyn Heights R. R. Co. (157 App. Div. 400) we said: “In New York it is reversible error to confront and discredit one’s own witness by the introduction of prior contradictory written statements.” Page after page of the record is taken up by this procedure at the opening of the trial. While matters of this kind are
The learned trial judge, over objection and exception by the defendant, admitted evidence that the plaintiff suffered from mastoiditis and had been operated on for that disease and that the accident was a competent producing cause for mastoiditis. The allegation of injury in the second amended complaint (supra) contains no reference to or suggestion of mastoiditis or an operation by reason of that condition. It was not a condition naturally resulting from the specific injury set forth in the complaint and should have been pleaded. (Kurak v. Traiche, 226 N. Y. 266, and cases cited.) We think the exception to the admission of this evidence requires reversal of the judgment.
The appellant complains of the conduct of plaintiff’s trial counsel, alleging that his treatment of the conductor to which we have already referred was improper, illegal and prejudicial to defendant’s rights to such an extent as to require
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
This court reverses the findings of the jury as to negligence on the part of the defendant and absence of contributory negligence on the part of plaintiff as contrary to the evidence.
Rich, Putnam and Jaycox, JJ., concur; Blackmar, J., concurs in the result.
Judgment and order reversed and new trial granted, with costs to the appellant to abide the event. Settle order on notice.