195 A.D. 496 | N.Y. App. Div. | 1921
This is an action to recover damages for personal injuries sustained by the plaintiff, who was five years of age, at about one o’clock in the afternoon of August 24, 1918, by being struck and run over by an auto truck in the use of the department of parks, on Mulberry street, opposite No. 58 where he resided with his parents.
The evidence presented a fair question of fact with respect to whether the chauffeur in charge of the auto truck was guilty of negligence and it cannot be said that it clearly preponderated in favor of the plaintiff on that issue. Plaintiff was permitted to show over objections and exceptions duly interposed and taken by the defendant that when the auto truck stopped about fifteen feet -after it struck the boy the chauffeur immediately jumped from it and started to run away and was followed a distance of about fifty feet and caught and brought back to the scene of the accident by one of the witnesses for the plaintiff. Appellant claims that the conduct of the chauffeur after bringing the truck to a stop was not part of the res gestee and that the reception of the evidence constituted, in effect, an admission on the part of the chauffeur after the accident that he had been guilty of negligence, which was the essential fact upon which alone the liability of the defendant could be predicated. It is perfectly well settled that the arrest of a servant, upon whose conduct negligence is predicated, immediately after an accident or the declaration of the servant after the event does not constitute a part of the res gestos and that evidence thereof is incompetent. (Luby v. Hudson River R. R. Co., 17 N. Y. 131; Whitaker v. Eighth Avenue R. R. Co., 51 id. 295; Butler v. Manhattan R. Co., 143 id. 417; Brauer v. New York City Interborough R. Co., 131 App. Div. 682; Maisels v. Dry Dock, E. B. & B. St. R. R., 16 id. 391; Seipp v. Dry Dock, E. B. & B. R. R. Co., 45 id. 489. See, also,
It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., Smith, Page and Merrell, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.