McEvoy v. Lommel

Hatch, J. : By this action damages are sought to be recovered for injuries sustained through the claimed negligent acts of the defendant. The plaintiff at the time of receiving the injuries was an infant of about five years and seven months of age. She was playing with some other children upon the street in front of the premises occupied by her parents in West One Hundred and Eighteenth street, between Eighth and St. Nicholas avenues, in the city of New York. While so playing she stepped into the street about a foot and a half from the curb and was there run down by a butcher’s wagon, owned by the defendant and driven by a boy of about seventeen years of age, and sustained the injuries of which complaint is [325] made. The testimony upon the part of the plaintiff tended to establish all of the elements entitling the plaintiff to recover damages. The defendant, however, controverted the case as made by the plaintiff and gave evidence in exculpation from liability. Upon this conflicting testimony, the jury found a verdict in favor of the defendant, and such verdict may not be disturbed upon the facts. By this appeal the plaintiff presents certain claimed errors in the rulings of the trial court, which he insists calls for a reversal of the judgment. After the close of the defendant’s proof, the plaintiff recalled the boy who drove the wagon, and interrogated him for the purpose of laying a foundation for giving rebuttal testimony, and also to procure from him an admission of certain statements inconsistent with his direct testimony, or, if not admitted, to lay the foundation for impeaching testimony. Being upon the stand, he was asked if he saw Hr. Williams, a witness for the plaintiff, sometime after the accident and admitted that he had. He was then asked: “ Q. Did you not at that time ask him how the child was injured and ask him to point out to yon where the child was standing when the child was injured ? A. Ho, sir; I did not. Q. Did you not then say that you did not see the child and did not know how the matter occurred ?' A. Ho, sir; I didn’t say one word to the gentleman.” For the purpose of contradicting this witness upon such subject, Williams, the witness with whom the claimed conversation was had, was recalled and asked to state what the boy said to him, and answered such question, stating, in substance, that he asked: “ ‘ How did I do this accident ? How did I run over the child?’ He said, ‘I didn’t see it.’” To which the witness replied : “ I said, I know very well you didn’t see it because you were looking toward Eighth Avenue; and he thanked me and walked out. He said it was an accident, and I said, I know that, too.” He was then asked : “ What, if anything, was said about the location where the child was standing? A. And he says, ‘ where was this child standing —.’ ” The witness having answered thus far, counsel for the defendant said: “ I object to that as not rebuttal.” Plaintiff’s counsel then said : “ I asked him this morning. That is what I recalled the boy for.” The court susr tained the objection, to which the plaintiff took an exception. The subject-matter of the testimony thus sought to be elicited was [326] material to the issue. Upon the direct examination the boy who drove the wagon testified that the child ran from the sidewalk into the street immediately in front of the front wheel of the wagon ; that he turned this wheel out of the way, but was unable to stop, and the hind wheel passed over the child. The statements claimed to have been made by him subsequent to the accident and to which his attention had been directed, bore directly upon such question, and if the jury believed that after the accident he had made statements showing that he did not see the child and did not know where she was standing in the street at the time the wheel struck her, it would seriously impair his credibility and furnish a basis for the rejection of his entire testimony bearing upon that subject. The testimony which he gave tended to excuse him of any negligence in the management of the horse and wagon. The subsequent statement which was sought to be established directly and forcefully contradicted his testimony in this respect. It was competent testimony and the method to elicit it was proper. (Patchin v. Astor Mut. Ins. Co., 13 N. Y. 268; Sloan v. N. Y. C. R. R. Co., 45 id. 125; Stape v. People, 85 id. 390; Jamieson v. N. Y. & Rockaway Beach R. Co., 11 App. Div. 50.) It is said, however, that the question propounded by the plaintiff was not the same question which was asked of the driver of the wagon. A comparison of the two questions which we have quoted shows that with respect to the location of the child at the time of the injury the question is quite similar, and exactly so, as to where the child was standing. In substance the question is the same in this respect as was propounded to the driver. It was not claimed upon the argument nor in the brief submitted by the respondent that any doubt could arise, but that the evidence sought to be thus elicited was called to the attention of the driver; that he- understood it and that if there was any change it was technical in the use of words which did not materially change the form or substance of the question, and certainly did not mislead or inject any foreign matter into the substance of the evidence which was sought to be obtained. The testimony being competent and proper and the question propounded being in substance the same as that to which the driver’s attention had been directed, it answered the requirements of the rule governing such matter. In Continental Nat. Bank v. Koehler (17 N. Y. St. Repr. 23; affd. on [327] appeal, 117 N. Y. 657) it was said by the presiding justice in considering a similar question: “A party has a right upon examination of a witness contradicting another in regard to the language used by him to use the language which has been before testified to or the substance thereof, in the putting of the question in answer to which the contradiction is expected.” Such is the rule of the authorities. (Shufflin v. People, 4 Hun, 16; Kinner v. D. & H. C. Co., 20 J. & S. 162; Sloan v. N. Y. C. R. R. Co., supra; Immaculate Conception v. Sheffer, 88 Hun, 335.) In addition to this it is to be observed that no such objection as is now suggested was raised upon the trial. Had it been so raised, the plaintiff might have obviated the same by putting his question in the precise language which had been propounded to the driver, or by recalling him and propounding to him the precise question which had been asked of the witness. The defendant not having taken any objection on this ground, must be held to have waived it. (Height v. People, 50 N. Y. 392; Murphy v. People, 63 id. 590; Schermerhorn v. Gregg, 55 id. 670.) It would seem to follow, therefore, that the plaintiff became entitled to have this question answered and that its exclusion constitutes reversible error. Error was also committed in permitting the defendant to read in evidence extracts from a standard medical work. It is quite true that the matter contained in the book had been in some respects the subject of examination by the plaintiff as a part of her affirmative case. The defendant undoubtedly had the right to cross-examine the physician who testified upon such subject with respect thereto. This, however, he did not do so far as the particular matter contained in the book was concerned. What he did was to introduce in evidence as a part of his affirmative case matter contained in the book by reading therefrom, after the plaintiff’s expert had been examined and when the subject-matter of the examination had entirely passed. It was not cross-examination but affirmative proof and as such was incompetent. (Foggett v. Fischer, 23 App. Div. 207.) As the admission of the matter contained in the book related alone to the injuries sustained and, therefore, bore exclusively upon the question of damages, the error would be immaterial, unless the jury found that the defendant was guilty of negligence and the plaintiff free from negligence contributing to the injury. In the [328] course of the trial, however, reversible error was committed, as heretofore stated. Such error bore directly upon the main issue of negligence, in consequence of which the error in the admission of the book, bearing upon the question of damages, is also available to the plaintiff. • If these views be correct, it follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. Patterson, J., concurred; Van Brunt, P. J., concurred on last ground stated; Ingraham and Laughlin, JJ., dissented.