56 N.Y.S. 88 | N.Y. App. Div. | 1899
The action was commenced to recover the damages caused by the negligence of the defendant, a street railway company. Upon the trial, a motion having been made by the defendant at the close of all the evidence for the direction of a verdict, the court, pending the decision of such motion, submitted to the jury four questions of fact raised by the pleadings; first, was the plaintiff free from any negligence contributing to the happening of the accident; second, was the accident caused through the negligence -of the defendant; third, what was the least amount that would compensate the plaintiff for the damages sustained through the happening of the accident; and, fourth, was the car at a standstill when the plaintiff attempted to get upon it ? The jury fixed the damages sustained by the plaintiff at $5,639.15; and answered the other questions in the affirmative. Subsequently the court granted the defendant’s motion to direct a verdict m its.favor, and upon the verdict so directed judgment was entered from which the plaintiff appeals. Upon the argument counsel for the defendant conceded that this verdict was improperly directed for the defendant and that the plaintiff was entitled to a new trial. The plaintiff, however, contends that upon this appeal judgment should be directed for him for the amount specified by the jury as the damages which he sustained as the result of the defendant’s negligence.
The court submitted these questions to the jury under section 1187 of the Code of Civil Procedure. That section provides that “ When a motion is made to nonsuit the plaintiffs or for the direction of a
There was, however, one exception taken by the defendant upon the trial which compels us to direct a new trial. The plaintiff testified that on the morning of January 7, 1896, he started to take one •of the defendant’s cars to go down town; that he walked from his house to Lexington avenue and Eighty-second street, then signaled ■a car going down town; that he was then standing on the southwest ■corner of Eighty-second street and Lexington avenue; that the car ■came to a stop on the corner, and that as he (plaintiff) attempted to ■step upon the car it went ahead with a jerk and he was caught on the left shoulder and turned around, after which he became unconscious for a few seconds; that the car continued on its way down town, leaving the plaintiff upon the street; that he (plaintiff) saw the •conductor inside of the car with his hand upon the bell rope before the car stopped ; that when he regained consciousness a policeman was holding him. The policeman who assisted him was called by the plaintiff as a witness, and testified that he saw the plaintiff walking down Lexington avenue ; that the plaintiff purchased a newspaper from the news stand on the corner of Eighty-second street, •and came out on the south crossing and held the paper in his hand, ■signaling the car to stop ; that the car came to a stop and the witness then saw the car start off again, and saw the plaintiff knocked •over near to the curbstone; that he saw the conductor on the inside ■of the car when the car stopped. The witness, upon cross-examinatian, stated that on the same morning he made a report of the accident at the station house to the sergeant; this report was a memorandum written by him and delivered to the sergeant when he got back to the station house; subsequent to the making of such report the sergeant at the station house entered the substance of the report in'the blotter; that upon the day he was first called to attend as a witness he went to a sergeant at the desk in the station house and asked to look at the report which he had made on the day of the accident; that the sergeant read it off to him from the blotter,
We think it was error for the trial court to refuse to allow the witness to read this entry in the blotter, and to state whether or not it had been correctly read to him by a sergeant of police a few days before the trial, he having testified that it was a correct statement of the report that he had made to the sergeant on the morning of the accident. The plaintiff’s case depended entirely upon the evidence that the car stopped, and that while attempting to enter he was thrown down by the sudden starting of the car before he had succeeded in entering. The police officer testified that he saw the car stop and then start on again, and that it was the starting of the car which threw the plaintiff down upon the street. In the discharge of his official duty he made a report of the occurrence to his suyierior officer on the morning of the accident, in which he states that the plaintiff slipped and fell in the street while trying to board a cable car. There is no statement in this report that it was the starting of the car that threw him upon the street, but the statement is that he slipped and fell in the street. The defendant was entitled to cross-examine the police officer as to the report that he made to his superior officer on the morning of the accident; and to prove the terms of that report so that the jury could see just what statement the police officer had made shortly after the accident, and consider it in connection with his testimony as to what there occurred. It was quite material for the jury to know that, when he made his
The fact that the original memorandum was not produced was not material. This was not a case in which a party is entitled to exclude an entry of a report made by a police officer to his superior officer without proof of the loss of the original memorandum which embodied the report that was made. The question of secondary evidence is not presented. The witness was under cross-examinatian, and any statement that he had made which tended to contradict or explain his testimony was competent evidence for the defendant as to the weight to be given to his testimony by the' jury. It was thus competent for the defendant to prove that the witness made a statement immediately after the accident which omitted a material fact that he had testified to upon the trial. Sergeant McNally, who read this report, was called as a witness and testified that on the Thursday before the trial the police officer who had testified for the plaintiff came to the desk at the station house. The witness was then asked to state whether or not upon that occasion he correctly read what was stated in the blotter to Jourdan, the police officer. That was objected to by the plaintiff, the objection was sustained, and the defendant excepted. We think this was clearly admissible, and that upon the sergeant’s testifying that he correctly read the report in the blotter to the police officer, the record of the report in the blotter was admissible. It was quite material for the jury, in determining the weight which they would give to Officer Jourdan’s testimony, to consider the report that he made immediately after the accident, as before stated, not only for what the report, as a matter of fact, did state, but .also for what it did not state, viz., that the plaintiff had been thrown off the car while attempting to enter it, or that the car had been a factor in the injury that the
The defendant also claims that he is entitled to a new trial upon the ground that the damages assessed by the jury were excessive. While the amount of the verdict seems large, it is not necessary to determine the question as to whether or not it is excessive, as for the error before referred to we are required to order a new trial.
The judgment appealed from is, therefore, reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brünt, P. J., Barrett and McLaughlin, JJ., concurred; Rumsey, J., concurred in result.
Judgment reversed, new trial ordered, costs to appellant to abide event.