Greener v. General Electric Co.

Kellogg, J.: 147 Appellate Division, 462, contains a statement of the material facts in this case upon the former appeal. Upon the trial now under review it appears that immediately after the intestate fell upon the floor a comrade asked him what had happened, to which he answered: “My feet is broke; the ladder bent over.” This evidence was received over the defendant’s objection and exception. I think it is not reversible error for two reasons: (1) Within the rule laid down in People v. Del Vermo (192 N. Y. 470) it was proper to show that imme [440] diately after the intestate fell a comrade standing about ten feet away hastened to him and asked what was the matter and his immediate reply: “ My feet is broke; the ladder bent over.” In the Del Ver mo case when the deceased had fallen to the ground a comrade asked, “ What is the matter ? ” and he replied ‘‘ Del Vermo stabbed me ■ with a knife. ” This was held proper, not as a dying declaration hut, as the court says, “ as a part of the res gestee in the broadest sense of that term, ” a ‘ ‘ spontaneous exclamation.” At page 483 the rule is stated: “.Evidence is admissible of exclamatory statements declaratory of the circumstances of an injury when uttered by the injured person immediately after the injury; provided that such exclamations he spontaneously expressive of the injured person’s observation of the effects of a startling occurrence, and the utterance is made within such limit of time as presumably to preclude fabrication. It will be observed that this exception contemplates and permits proof of declarations by an injured person made after the event, so that it cannot fairly he said that the words spoken really constituted a part of the thing done.” (2) It was a self-evident fact that the' ladder was bent over and that its bent condition was in some way connected with the fall of the intestate. The admission of the declaration, if inadmissible, was not reversible error. The absence of this declaration could not change the result. Ho reversible error is found in the record. The judgment and order should, therefore, be affirmed, with costs. All concurred, except Lyon, J., dissenting • in opinion, in which Houghton, J., concurred.