80 N.Y.S. 71 | N.Y. App. Div. | 1903
Lead Opinion
By this action damages are sought to be recovered for injuries sustained through the claimed negligent acts of the defendant.
The plaintiff at the time of receiving the injuries was an infant of about five years and seven months of age. She was playing with some other children upon the street in front of the premises occupied by her parents in West One Hundred and Eighteenth street, between Eighth and St. Nicholas avenues, in the city of New York. While so playing she stepped into the street about a foot and a half from the curb and was there run down by a butcher’s wagon, owned by the defendant and driven by a boy of about seventeen years of age, and sustained the injuries of which complaint is
After the close of the defendant’s proof, the plaintiff recalled the boy who drove the wagon, and interrogated him for the purpose of laying a foundation for giving rebuttal testimony, and also to procure from him an admission of certain statements inconsistent with his direct testimony, or, if not admitted, to lay the foundation for impeaching testimony. Being upon the stand, he was asked if he saw Hr. Williams, a witness for the plaintiff, sometime after the accident and admitted that he had. He was then asked: “ Q. Did you not at that time ask him how the child was injured and ask him to point out to yon where the child was standing when the child was injured ? A. Ho, sir; I did not. Q. Did you not then say that you did not see the child and did not know how the matter occurred ?' A. Ho, sir; I didn’t say one word to the gentleman.” For the purpose of contradicting this witness upon such subject, Williams, the witness with whom the claimed conversation was had, was recalled and asked to state what the boy said to him, and answered such question, stating, in substance, that he asked: “ ‘ How did I do this accident ? How did I run over the child?’ He said, ‘I didn’t see it.’” To which the witness replied : “ I said, I know very well you didn’t see it because you were looking toward Eighth Avenue; and he thanked me and walked out. He said it was an accident, and I said, I know that, too.” He was then asked : “ What, if anything, was said about the location where the child was standing? A. And he says, ‘ where was this child standing —.’ ” The witness having answered thus far, counsel for the defendant said: “ I object to that as not rebuttal.” Plaintiff’s counsel then said : “ I asked him this morning. That is what I recalled the boy for.” The court susr tained the objection, to which the plaintiff took an exception. The subject-matter of the testimony thus sought to be elicited was
Error was also committed in permitting the defendant to read in evidence extracts from a standard medical work. It is quite true that the matter contained in the book had been in some respects the subject of examination by the plaintiff as a part of her affirmative case. The defendant undoubtedly had the right to cross-examine the physician who testified upon such subject with respect thereto. This, however, he did not do so far as the particular matter contained in the book was concerned. What he did was to introduce in evidence as a part of his affirmative case matter contained in the book by reading therefrom, after the plaintiff’s expert had been examined and when the subject-matter of the examination had entirely passed. It was not cross-examination but affirmative proof and as such was incompetent. (Foggett v. Fischer, 23 App. Div. 207.) As the admission of the matter contained in the book related alone to the injuries sustained and, therefore, bore exclusively upon the question of damages, the error would be immaterial, unless the jury found that the defendant was guilty of negligence and the plaintiff free from negligence contributing to the injury. In the
Patterson, J., concurred; Van Brunt, P. J., concurred on last ground stated; Ingraham and Laughlin, JJ., dissented.
Dissenting Opinion
This is an action to recover damages sustained by the plaintiff, an infant five years of age, alleged to have been caused through the negligence of the driver of the defendant’s butcher wagon. The evidence presented a fair question of fact for the consideration of the jury upon both questions of negligence. The questions presented on the appeal requiring consideration are two exceptions to the evidence. One Williams was a witness for the plaintiff. The driver of the butcher wagon was asked if he saw Williams sometime after the accident, and upon his answering in the affirmative whs then asked: “ Q. Did you not at that time ask him how the child was injured ? ” to which he replied, “ Ho, sir; I did not.” He was then asked: “ Q. Did you not then say that you did not see the child and did not know how the matter occurred ? ” to which he replied, “Ho, sir. I didn’t say one word to the gentleman.” For the purpose of contradicting the driver, who had given material testimony as to how the accident occurred, Williams was then recalled and asked to state what the driver said to him. Ho objection was interposed to this question, and he answered that the driver said to him in substance: “‘How did I do this accident? How did I run over the child ? ’ He said, ‘ I didn’t see it.’ ” The witness testified that he replied to the driver, “I know very well you didn’t see it, because you were looking toward Eighth Avenue,” whereupon, according to his testimony, the driver thanked him and walked out. He further testified that the driver said, “ It was an accident and I said, I know that, too.” Williams was then asked, “ What, if anything, was said about the location where the child was standing?” to which he started to reply: A. And he
The other objection urged relates to an error in permitting the defendant to read in evidence extracts from a standard medical work. This bore only on the question of damages. There was no controversy but that the child was injured, and there is no reason to believe that the verdict of no cause of action was rendered on the theory that no damages were sustained. The evidence erroneously received had no tendency to contradict or impeach any witness who testified upon the main issue. Consequently, the jury having found
It follows that the judgment should be affirmed, with costs.
Ingraham, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.