10 N.Y.S. 310 | Superior Court of Buffalo | 1890
This action was brought to recover damages for the killing of plaintiff’s horse on Main street, in Buffalo. From the facts developed upon the trial, it appeared that plaintiff’s horse was being driven by an intending purchaser for the purpose of examination and trial. At the time of the accident he was driving upon the right-hand side of Main street going south. In the center of Main street are laid two lines of street-railway tracks, leaving a drive-way on either side sufficient in width for ordinary vehicles to meet and
I am not inclined to adopt this view; on the contrary, subsequent examination has confirmed the impression existing at the trial. The ruling that defendant was presumptively negligent in being upon the wrong side of the road was quite as favorable as plaintiff was entitled to, although there is authority for it. Pike v. Bosworth, 7 N. Y. St. Rep. 665. The statute provides a penalty for a person driving upon the road-way, and about to meet a passing team, who does not turn to the right of the center of the road. Earing v. Lansingh, 7 Wend. 185. But such statute does not provide per se that an offender shall be liable for all damage which may happen while there. While it may be legal negligence for him to be there, his liability must depend upon the rules of law applicable to eases of negligence. Simmonson v. Stellenmerf, 1 Edm. Sel. Cas. 194; Brooks v. Hart, 14 N. H. 307; Parker v. Adams, 12 Metc. 415; Palmer v. Barker, 11 Me. 338. A different rule would permit an invasion of the rights of others, and authorize a recovery for one’s own wrong. The case was therefore correctly submitted to the jury in this respect.
Upon the trial the court permitted an inquiry as to whether it was customary for vehicles to go up and down on both sides of the street; also the number of vehicles which passed the point of the accident, in a reverse direction, within a given time. This evidence was objected to by plaintiff as immaterial and improper, and an exception taken. In its charge to the jury, the court called specific attention to the evidence, and directed the jury to lay it aside, and not permit it to enter into their deliberation, as it was entirely immaterial. There does not seem to have been entire harmony in the expression of courts upon this subject. The case of Erben v. Lorillard, 19 N. Y. 299, is a leading case upon this subject, and is relied upon by plaintiff in support of his motion. In that case plaintiff was permitted to give evidence, under objection and exception, of an agreement by which he was to receive, by way of compensation for his services in effecting the purchase of a piece of land, a lease of the same for 21 years, at the annual rate of 8 per cent, on the
In Garfield v. Kirk, 65 Barb. 464, the action was brought for the recovery of attorney’s fees, and was tried before a referee. On the trial, evidence was given of a special contract; but plaintiff disclaimed any intention of relying thereon, and on motion the evidence was stricken out. On the authority of Erben v. Lorillard, this was relied upon as error. The court, in discussing this question, intimate that the effect of the decision referred to is as stated by Judge Grover, but say: “The instruction by the court, in its charge, to disregard evidence on the trial is equivalent to striking out; and, if such an instruction does not strike out, then it follows that illegal evidence cannot be got rid of, when once received; and the court, on discovering the error, must commence the trial anew, or let it go on with the knowledge that the verdict will be set aside either by the court itself or on appeal. Such a result cannot have been contemplated. * * * The presumption should be that the jury acted only upon the legal evidence submitted to them, and not upon that which they have been told not to regard, or which has been stricken from the case. ”
In Stone v. Frost, 6 Lans. 440, the court held that an error in the admission of evidence was cured by striking out, and a direction given to disregard the testimony as immaterial.
In Railroad Co. v. Sage, 35 Hun, 95, the court held that an instruction in the charge directing the jury to disregard improper testimony theretofore received cured the error. This holding was upon the authority of Linsday v.
In People v. Parish, 4 Denio, 156, Justice Bronson squarely lays down the rule that, where improper evidence is received under exception, a subsequent instruction to the jury to lay it out of the case cures the error. In his discussion he says: “It is not unusual for a judge to correct an error into which he may have fallen in the admission of evidence by striking the testimony out of his minutes, and telling the jury to disregard it. When that is done, the exception which was taken when the evidence was received should fall to the ground. We ought not to presume that the jurors disregarded the instructions of the court, and allowed the evidence to influence their verdict. ”
In Neil v. Thorn, 88 N. Y. 276, Judge Danforth, in writing the opinion of the court, says: “It is well settled that an erroneous ruling as to evidence may be corrected by the court,”—citing as authority People v. Parish, supra; but he adds: “It must indeed appear that the error was corrected under circumstances which worked no injury to the party excepting.” A somewhat contrary doctrine is found in Allen v. James, 7 Daly, 13, where the action was to recover commissions by a real-estate broker. The issue was one of employment, but testimony was permitted to be given, under objection and
In Neuman v. Goddard, 48 How. Pr. 363, the action was for conversion of goods, and damages for breaking up and destroying plaintiff’s business. Upon the trial, plaintiff was permitted, under objection and exception, to give evidence of threats by defendant of personal injury and violence to plaintiff after the ejection from his store, and after the conversion of the goods; also that the goods, taken afterwards, enhanced in value from 100 to to 200 per cent. The court charged the jury, upon request of counsel, not to take this evidence into consideration upon the subject of damages. On appeal the court held and said: “If the evidence may have affected the verdict, the error cannot be disregarded, ” even though the court directs the jury to disregard it. This holding was based exclusively upon the language of Judge Grover in Erben v. Lorillard. The question again arose in Traver v. Railroad Co., *42 N. Y. 497. The action was for damages for personal injuries. Evidence was offered to show the prior earning capacity of the plaintiff, who was an infant. The mother had previously recovered for the loss of service, and expense in caring for her. The court instructed the jury not to give damages for such service. Judge Grover, writing the opinion of the court, says: “This direction would not have cured the error (if one was committed) in receiving the evidence, if that was such as was calculated to create a prejudice in the minds of the jury, and influence them in fixing the amount of damages, unless it appeared from the whole case that the jury were not so influenced. ” It was there held that the evidence was not of such a character. There are some other cases where the principle has been more or less discussed, but they do not tend to make the subject luminously clear, and it is not profitable to present them further.
From an examination of all the cases, my mind strongly tends to an adoption of the views stated by Judge James C. Smith in Mandeville v. Guernsey, 51 Barb. 99, as being a clear statement of the principle, and a logical and satisfactory deduction therefrom. But, notwithstanding this inclination, the expression of opinion by the court of last resort does not seem to carry the rule to the extent therein claimed and laid down. On the contrary, I am led to the conclusion that the rule to be extracted from all the varying expressions is not whether the evidence against which the instruction is aimed may have affected the verdict, but whether, taking into consideration all the circumstances, it appears with reasonable certainty that the party has not been injured by the introduction of the evidence excepted to. Such rule seems to find support, in principle, in People v. Dimick, 107 N. Y. 26, 14 N. E. Rep. 178. This leaves the rule to depend, in its application, upon the circumstances of each case. It has been assumed that the evidence admitted in the present case was erroneously received. Of this there may be some question; but in the view now taken it is not essential to determine it, as the conclusion is reached that the error was cured. The charge of the court upon the principles of law was, as we have seen, unexceptionable, and no complaint was made at the trial. The evidence objected to was specifically called to their attention, and they were instructed not to permit it to enter into their deliberations. After the jury had retired and deliberated, they asked for