Hubner v. Metropolitan Street Railway Co.

Hatch, J.: This action was brought to recover damages for injuries claimed to have been received by the negligent act of one of the defendant’s employees. The plaintiff, a boy of the age of about ten years and eight months, was injured while riding a bicycle easterly upon Twenty-sixth street near the corner of Lexington avenue. He and another boy were riding down Twenty-sixth street, and when about fifty feet from Lexington avenue, plaintiff looked up and saw an ash cart coming down the avenue about one hundred feet above Twenty-sixth street. In front of them, standing near the southerly side of Twenty-sixth street, was a horse and wagon, and just behind this standing wagon was a team of horses coming on a trot, hitched to an express wagon. As the express wagon turned out to pass the standing wagon plaintiff’s friend, who was riding beside him, ran his bicycle between the two wagons, which were from three to five feet apart. Plaintiff did not attempt to go between the two wagons, but turned out to the left of the express wagon, and when he was about five feet behind it, the driver of the cart coming down Lexington avenue turned his horse suddenly into Twenty-sixth street, at a point about ten to fifteen feet from Lexington avenue, when the horse and the boy upon the bicycle came into collision and the plaintiff received injuries, for which he is now seeking to recover damages. All of the plaintiff’s witnesses who saw the driver of the ash cart before the collision testified that the driver was standing up in the cart and whipping the horse; that he was driving rapidly, and that he came down Lexington avenue until about opposite the middle of Twenty-sixth street, when he suddenly turned, still whipping his horse, and ran into the boy on' the wheel, at a point in Twenty-sixth street, varying in distance from about ten to fifteen [292] to upwards of forty feet from Lexington avenue. The driver of the cart testified that he was letting the horse walk; that he had no whip in his hand and was not whipping the horse, and that he turned into Twenty-sixth street to the curb on his right-hand side, and that the plaintiff, who was riding upon his wheel, while attempting to turn around ran into his horse and was thus injured. It is the contention of the appellant that, inasmuch as the plaintiff himself testified that he had passed to the rear of the express wagon when the collision occurred, he, then had a clear street to the right and plenty of room to avoid the horse on the ash cart, and that if he collided with it it must have been from his own negligence. It will be seen, however, from an examination of plaintiff’s testimony that he had just passed the express wagon, and was about five feet in its rear, when the accident occurred, and it was for the jury to say whether he was able to avoid the collision or turn before the horse struck him. The plaintiff called as a witness McGrath, the driver of the cart, who testified that upon the day of the accident he was working for the defendant driving the ash cart; that as he turned into Twenty-sixth street, about two feet from the curb, and when about fifteen feet from Lexington avenue, the boy, in trying to turn around on his bicycle, ran into the horse’s belly and thus received his injuries. The, plaintiff asked him nothing about whether he was whipping the horse or not. Upon cross-examination by the defendant he testified that he did not have a whip in his hand. Upon this point he was cross-examined by the plaintiff’s counsel, and the evidence was read, which he had given upon a former trial, for the purpose of discrediting him, and upon other points, about which the defendant had questioned him, that had not been touched upon by the plaintiff. The defendant contends that this was error in that it was an attempt by the plaintiff to impeach his own witness. We are of the opinion that the court did not err in the ruling which it made. The cross-examination related to a matter independent of the direct examination, and was part of defendant’s affirmative defense; under such circumstance the witness became subject to a cross-examination, in manner the same as to the subject-matter developed by the defendant as the plaintiff would have been entitled to had McGrath been called by the defendant. The limitation of the rule under such circumstances is that witnesses [293] may not be called to impeach the character, as the party calling the witness vouches for his credibility to that extent. (Hunter v. Wetsell, 84 N. Y. 549; Fall Brook Coal Co. v. Hewson, 158 id. 150; Becker v. Koch, 104 id. 394.) Counsel contends that error was committed in permitting the plaintiff to withdraw from the case the testimony given by Hr. Williams. This physician had treated the plaintiff since October, 1898. He examined him at the time of the accident. He did not, therefore, testify as an expert upon a hypothetical state of facts developed by the testimony alone, but from actual knowledge which he had gathered by attendance upon him professionally. The witness was cross-examined by the defendant with respect to the curvature of the spine, with which the plaintiff was afflicted, at considerable length, and the redirect examination related to the subject-matter of the cross-examination which had preceded it. We think that the entire testimony, as given by the witness, was competent and might have been permitted to remain in the case. Counsel for the defendant does not point out in his brief wherein any error was committed in its reception. Being competent and in the case, it is clear that it could not be stricken out and disregarded even though produced by the plaintiff, if the defendant was prejudiced thereby. It having once come into the case, the defendant was entitled to have it remain as well as the plaintiff, if any inference arose therefrom, which could in any view be of benefit to the defendant. (Frohle v. Brooklyn H. R. R. Co., 41 App. Div. 344; Fredenburgh v. Biddlecom, 85 N. Y. 196 ; Spaulding v. Hollenbeck, 35 id. 204.) The learned counsel for the appellant has not pointed out in his brief in what manner, if any, the defendant was, or could be, prejudiced by striking out his testimony. The distinct effect of the testimony which was stricken out was to limit the force of the cross-examination with respect to the curvature of the spine, and the anaemic condition of the plaintiff, and if any benefit was derived by striking it out that benefit inured to the defendant, as it left the cross-examination of the witness upon such subject without any qualifying circumstances. It was, therefore, more favorable to the defendant than it would have been had the testimony so stricken out remained in the case. Error was not, therefore, committed by [294] the ruling of the court in this regard. The law upon this subject seems to be that even though an error be committed by the court in admitting testimony, yet, if it appear with reasonable certainty that the party has not been prejudiced by the introduction of the evidence, and will not be prejudiced by striking it out, the court is authorized to correct the error. (Newman v. Ernst, 31 N. Y. St. Repr. 1, and cases cited.) In Erben v. Lorillard (19 N. Y. 299) it appeared that prejudicial error was committed which could not be cured by striking out. Indeed, it was evident, from the conclusions reached by the jury in that case that they did not follow the direction of the court, as with the testimony stricken out nothing remained to support the verdict. It was, therefore, clear that prejudicial error was committed, which was not cured by striking out. In Traver v. Eighth Ave. R. R. Co. (3 Keyes, 497) Judge Grover, who wrote in Erben v. Lorillard, modified his statement in. the former case and held that it would be proper to strike out testimony if it appeared from the whole case that the jury were not influenced thereby. In the cases relied upon by the defendant the testimony received and stricken out was of a character from which the court could see that the jury must have been impressed thereby, in which case the error in receiving incompetent testimony will not be cured by striking it out. (Koehne v. N. Y. & Q. County R. Co., 32 App. Div. 419; affd. on appeal, 165 N. Y. 603.) In the present case, it is not perceived how competent testimony, which was only favorable to the plaintiff, and which in no view inured to the benefit of the defendant, constitutes prejudicial error against the latter in being stricken out. We find no error which calls for a reversal of this judgment. It should, therefore, with the order appealed from, be affirmed, with costs. Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented. Judgment and order affirmed, with costs.