178 Misc. 458 | N.Y. Sup. Ct. | 1942
These two actions were brought to recover damages arising out of a railroad crossing accident. The jury has returned verdicts of no cause of action in each instance. The plaintiffs now seek a new trial for error alleged to have been committed by the trial court in permitting the defendants to read into the record a certain deposition and in refusing to allow evidence of other accidents at the same crossing to be introduced.
■ Sometime prior to the trial, at the instance of the plaintiffs and over the objections of the defendants, an order was granted directing an examination before trial of both defendants as adverse parties, and requiring that “ the defendants appear and be examined by the flagman or watchman who was employed at the railroad crossing referred to in the complaints, as to his own employment, the nature and extent of his duties, and as to all other relevant facts and circumstances relating to said accident * * This order was sought, not for the examination of the watchman as a witness, but as a managing agent or employee of an adverse party, and was granted on the theory that his duties were not confined to mere minor details connected with the operation of the railroad, but rather, so far as that crossing was concerned, were of a representative and managerial nature akin to those of an elevator operator (Bregman v. Edbro Realty Co., Inc., 135 Misc. 87; Loring v. Dime Savings Bank of Brooklyn, 247 App. Div. 809), or a motorman or conductor (Enequist v. Brooklyn City R. R. Co., 216 App. Div. 730), or the driver of a horse and wagon figuring in an accident (Ida v. Borden’s Farm Products Co., Inc., 247 App. Div. 760). Apparently, the testimony which he gave did not come up to the plaintiffs’ expectations, for they did not seek to read it into the evidence. The defendants, however, over the plaintiffs’ objections, were permitted to read it, and therein lies the claim of error.
I can give little credence to the plaintiffs’ present argument that despite the order granted to them, the watchman was actually examined as a witness, and not in his capacity as representing the corporate defendant. Section 288 of the Civil Practice Act
Being the deposition of a party taken at the instance of an adverse party, no proof of unavailability is necessary as a prerequisite to its use. (Civ. Prac. Act, § 304; Murphy v. Casella, 263 App. Div. 1001; General Ceramics Co. v. Schenley Products Co., Inc., supra; Tieman v. Davies, Turner & Co., Inc., supra; National Fire Ins. Co. v. Shearman, 223 App. Div. 127, 128; Shapiro Bros. Factors, Inc., v. Moskowitz, 33 N. Y. Supp. [2d] 67.)
The next question is whether or not such deposition may be read by the party itself. Section 303 of the Civil Practice Act in plain
The plaintiffs dwelt at some length on the possibility that the jury might not have believed the watchman had .they seen him, and that they were estopped from attacking his credibility. Obviously, the same argument could be made relative to the use of almost any deposition, and the plaintiffs’ objections seem to me to be more properly directed to the Legislature than to the courts. Furthermore, this is a matter which they should have considered before seeking the examination. There is little substance to the argument that the plaintiffs have been deprived of the right of cross-examination for, as Professor Wigmore points
The plaintiffs also contend that at most the deposition was that of the D. & H. Railroad which, it was stipulated, employed the watchman and controlled the crossing, and that it should not have been read “ in favor ” of the Erie. We need not be concerned with this argument, for the deposition was at no time read “ in favor ” of the Erie. The court charged, without objection, and as clearly as his ability permitted, that the liability of the D. & H., if any, was predicated upon the failure of the watchman to perform his duties, while the liability of the Erie, if any, was predicated upon the manner in which it operated the train in question. The acts of the watchman, therefore, did not affect the case, so far as the Erie was concerned.
The other claim of error is predicated upon the court’s refusal to permit evidence of other accidents at the same crossing, to show that a dangerous condition existed, of which the railroad should have had knowledge, and that the watchman was incompetent. As a general rule, of course, proof of similar accidents is not admissible in negligence cases. (Dye v. D., L. & W. R. R. Co. 130 N. Y. 671, 673.) In a limited class of cases, however, where liability is predicated upon a defect in or the dangerous condition of some “ work of human construction,” evidence of prior accidents is admissible. (Quinlan v. City of Utica, 11 Hun, 217; affd., 74 N. Y. 603.) First, however, it is necessary to show the dangerous condition of the “ object which caused the accident.” (Richardson on Evidence [5th ed.], p. 125.) No defect is alleged here. No “ work of human construction ” failed to function. This accident occurred because someone was careless, and the question for the jury to decide was who that someone was. The fact that there may have been one or one hundred other accidents could not possibly have aided them in reaching their determination on this question. Moreover? it goes without saying, that no other accident of this type could have occurred under exactly the same circumstances, and in the absence of such a showing, evidence of prior accidents, due to a defect or to improper construction, is not admissible. (Morrow v. Westchester Electric R. Co., 54 App. Div. 592; affd., 172 N. Y. 638; Greasy v. Eastern Greyhound Lines, 249 App. Div. 59.) We are not dealing with a case of a hole in the street, a defective step or a broken rail. We are dealing with persons and their reactions to given circumstances. In the Morrow case (supra) the court said
The motion to set aside the verdicts is denied.