10 N.Y.S. 105 | New York Court of Common Pleas | 1890
The plaintiff, a laborer in the defendant’s employment, was injured while loading gas-mains upon a truck, and it is claimed that defendant furnished unsafe appliances for the work; the truck, and the means for load-it, being, as alleged, unsuitable and improper. On the trial, a fellow-workman of the plaintiff was permitted to testify to a declaration made by defendant’s foreman after the accident that the truck was not a fit truck to load pipe on. The exception to the admission of this evidence requires the reversal of the judgment. Admissions and declarations of an agent after the fact, not part of the res gestee, are not admissible. An attempt was made to cure the error by a subsequent direction to the jury to disregard the evidence. This is unavailing. Erben v. Lorillard, 19 N. Y. 299; Church v. Howard, 79 N. Y. 415. The judgment should be reversed, and a new trial ordered, with costs to abide event.
