Gleason v. Metropolitan Street Railway Co.

Hatch, J.: This action was brought to recover damages for injuries claimed to have been received through the negligence of the defendant. So far as material the facts are as follows : The plaintiff lived on One Hundred and Tenth street and was employed near Twenty-third street and Seventh avenue. He took one of defendant’s cars on Broadway and was carried to Fifty-ninth street, where he changed to a Sixth avenue car. Having procured a transfer he left the Sixth avenue car at Fiftieth street to take a horse car going down Seventh avenue. The car barn of the defendant was on Fiftieth street and the car which the plaintiff desired to take was then in the barn. He entered the place where the car was standing, being preceded by a lady who got upon the car. The driver of the car was standing on the platform ready to start. No conductor was upon the car. The plaintiff took hold of the rail of the car and while stepping up, the driver suddenly started the same and the plaintiff was thrown against an iron pillar, his collar bone was broken, he was rendered unconscious and otherwise received injuries. At the close of the plaintiff’s case the defendant moved to dismiss the complaint upon the ground that there was no proof of any negligence upon the part of the defendant. The plaintiff asked to go to the jury upon the evidence. The latter motion was denied, the complaint was dismissed, and from the judgment entered thereon this appeal is taken. It is not necessary that we determine whether the evidence was sufficient to show negligence or not, as it stood at the close of the trial, as we are of opinion that error was committed in the exclusion of evidence which was offered, which was material to the case, and had it been received it, together with that already adduced, might have established a case requiring the court to submit the question of negligence and contributory negligence to the jury for their determination. [211] It appeared that the place where the plaintiff attempted to board the car was inside the barn or shed and not upon the street, and it was claimed by the defendant that passengers were not received at that point and that the driver of the car had no notice that plaintiff was attempting to board the car when he started the same. It became a material question, therefore, whether passengers were received at this place. If they were, then it cannot be disputed but that the defendant owed a duty to the plaintiff to see that he was given a reasonable opportunity to board the car at that place. (Jones v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 187.) The plaintiff sought to show that it ivas customary for the defendant to receive passengers at this point. Upon such subject he asked the plaintiff the following questions: “ Q. Had you gotten on cars at that place before ? ” Defendant’s counsel objected to the testimony as immaterial, irrelevant and incompetent. The objection was sustained, to which the plaintiff took an exception. “ Q. Do you know what the custom was at that time with regard to passengers boarding cars at that point ? ” To this question the same objection was interposed and a like ruling had, to which an exception was taken. These questions were proper and competent and bore upon a material issue in the case. The first question called for a fact as to whether the plaintiff had boarded cars at that place. If he had, then it would have been preliminary to the question as to the length of time and the number of times and the circumstances which had attended his taking the car at that place, and therefrom if it had been made to appear, as it might, that the defendant had received the plaintiff as a passenger at that point and carried him therefrom for any considerable period of time, dependent upon the number of times, it might have such probative force as to authorize a finding that the defendant had knowledge that the plaintiff customarily took the car at that point and thereby arrive at the conclusion that it owed him the same duty as a passenger boarding the car at that point as it would the reception of passengers at other points. Upon the proof, as it stood, it appeared that one passenger had preceded him into the car, and if this had been followed by showing a habit of the plaintiff to take the car at this place, it might require a submission of the case to the jury. The custom in this respect could be established by his own evidence as well as by others. (Vail v. Rice, 5 [212] N. Y. 155, 157.) The second question was also competent. It called for the defendant’s knowledge upon the subject of a custom which had been established respecting the reception of passengers at that point; the inquiry was at the threshold of the subject as he could only be shown to have had knowledge by asking him the question. It is clear beyond debate that had it been shown that defendant customarily received passengers at this point the obligation and duty of properly protecting them would at once arise in precisely the same manner as at every point where passengers were received. The inquiry into such subject was entirely shut out and excluded. It is said, however, that the plaintiff was not entitled to show these facts for the reason that they were called for upon his redirect examination and, therefore, it was discretionary with the court to receive it or not. The ordinary rule which permits the court in its discretion to exclude testimony which properly forms a part of the affirmative case and which is not new matter developed in the course of the cross-examination has no application to such a case as this. Here the evidence sought to be elicited went to the plaintiff’s cause of action and related to a subject to which the attention of the witness had not been directed. If the plaintiff had been permitted to leave the stand without interrogation upon such subject, he would not be precluded from calling wit nesses to establish the facts sought to be elicited, and we see no reason why he might not, at any time before he rested, call the plaintiff upon such subject, even though he had omitted to examine him thereon prior thereto. Under such circumstances, if the court excluded it as resting in discretion and for the reason that his examination had been exhausted, it would be a clear abuse of discretion and call for a reversal for such reason. It is evident, however, that the court based its ruling on no such ground. The objection raised no such question, as the grounds of the objection were that it was incompetent, irrelevant, immaterial and not pleaded, so that a discretionary ruling was not invoked nor called to the court’s attention, and the grounds of the objection were otherwise unavailing, as the questions sought to elicit testimony which was material, relevant and competent; and if evidence thereunder had been received, a cause of action might have been made out. As error was committed in this respect, the judgment appealed from should [213] be reversed and a new trial granted, with costs to the appellant to abide the event. O’Brien and Laughlin, JJ., concurred; Ingraham and McLaughlin, JJ., dissented.