99 N.Y.S. 351 | N.Y. App. Div. | 1906
The plaintiff , had a verdict for $19,8.75 for the death of her intestate- resulting from a boiler explosion alleged to have been caused
Our attention is directed to several exceptions which are fatal to the judgment, and it will only be necessary to discuss the evidence sufficiently to understand the points presented by the exceptions which I shall consider. The plaintiff called the engineer who had charge of the boiler, one Golligan, and elicited from him testimony material to the plaintiff’s case; indeed it could not be contended that without such testimony the plaintiff’s evidence presented a question for the jury, even .assuming that such testimony did make a case, which we need not now determine. • Later said Golligan was called as a witness by one of the defendants, and other testimony was elicited from him thought to be favorable to the defendant’s case. He was then cross-examined by the plaintiff’s counsel and denied having made prior contradictory statements, and in rebuttal the plaintiff was permitted to call the witness to whom contradictory statéments were alleged to have been made and said witness was permitted to testify thereto over objection and exception sufficient to present the question here whether it was error to permit the plaintiff thus to impeach a witness whom she herself had called and elicited material testimony from. It is not disputed that the rule in this State precludes a party impeaching his own witness- either by general evidence or by proof of prior contradictory statements made out of 'court. Whatever the reason for such rule or whatever our views respecting the soundness of such reasons, it is the rule which courts in this State must respect unless the Legislature sees fit to change or abrogate it, but counsel for the respondent in a very ingenious and elaborate argument contends that this case presents an exception to the rule, and argues that by showing prior contradictory statements the particular testimony contradicted and not the witness giving it is impeached, and lie undertakes to justify this distinction by resort to the reason which lies at the foundation of the rule as stated by different text writers. I do not think the subject can be illumined by a discussion of such reasons which are stated .differently by different judges and text writers. It is undoubted that the. original reason, whatever it was, had its origin in conditions no longer existing, and is' to-day a fiction, and we shall have less difficulty and ■ be less likely
’ The plaintiff called a witness, and, after qualifying him as an expert, propounded the following question: “ Assuming, Mr. Southard,-that a vertical boiler eight. feet high and four feet in diameter, beneath which there was a fire; that this boiler was allowed to carry 70 pounds pressure of.steam; that at the given time of which I am speaking there was a pressure of but 40 pounds of steam and that the'-water was within eighteen inches of the top of the boiler, and that then in that situation an explosion took place and the boiler was blown Off of its foundation, the house in which the boiler was inclosed was also blown away, and tlie engineer was not doing anyi thing to the boiler by the fire or anything at the time ; that he had looked at it two minutes before and found the pressure of -steam was only 40 pounds as it was registered, can you state what the cause of that explosion was ? ” to which he answered, “ I can.” He Was, then asked to state the. cause of the. explosion, to which question each defendant separately objected as being speculative.and not binding upon it, the objection was overruled and each defendant excepted. The witness then■ stated in substance in.answer to this and other questions propounded by the court that the explosion' was due,to the imperfect condition of the. tubes Of the boiler due to the thinness of the, tubes caused by continual wear and. tear —- by long drawn out use without “ reparation,” The hypothetical question contained all of the facts established by the plaintiff, before
Hieschberg, P. J., Jenks, Hooker and Rich, JJ., concurred.
Judgment and- order reversed and- new trial granted, costs to abide the event.