Weinstein v. Interurban Street Railway Co.

Gildersleeve, J. This is the usual action to recover damages for injuries alleged to have been sustained through the careless operation of one of defendant’s cars upon which the plaintiff was a passenger. The jury in the court below rendered a verdict in favor of plaintiff; and, from the judgment entered thereon, and the order denying defendant’s motion for a new trial, defendant appeals. The principal act of negligence charged by the plaintiff was the starting of the car while the plaintiff was in the act of alighting therefrom and before she had been given a reasonable opportunity to get safely to the street. It appears that the car in question was being operated upon the Avenue 0 division of the defendant. The alleged accident occurred on [470] Hovember 17, 19j)3, at which time one Avery Sickles was the accident clerk in the employ of defendant. Having been called as a witness for defendant, he stated that he had charge of the records of the company which contained all reports from all conductors and motormen who had accidents on cars, and that he was unable to find any record of any accident whatever occurring to plaintiff, or any one else, at the time and place alleged in the complaint. To refresh the witness’ memory as to a date, a written requisition of the claim agent to the superintendent of the Avenue 0 division, for information in regard to the alleged accident in question, was placed by defendant’s counsel in the hands of the witness; whereupon plaintiff’s counsel offered said requisition in evidence. .Defendant’s counsel objected, upon the ground that it was incompetent, irrelevant and immaterial. The court overruled the objection, to which ruling an exception was duly taken, and the paper was admitted in evidence and marked' “ Plaintiff’s Exhibit A.” The said paper bears date of December 28, 1903, and reads in substance as follows: “ Metropolitan Street Railroad Company. To the Superintendent of the Avenue C division. Dear sir: I am advised that an accident has occurred on Hov. 17, 1903, as follows: Mrs. Weinstein; Location Bowery and Prince; car Ho. 7; about 6 p. m.; getting off, sudden start, conductor rang bell too quickly. Please forward report and oblige W. A. Dibbs, claim agent.” The judge below in his charge to the jury directed attention to this exhibit and said: “ You have a right to say from the complaint in this action and from all the surrounding circumstances whether that was a statement which came to the defendant by reason of information derived from the plaintiff or by reason of information received from the conductor or motorman of the car. The defendant is not absolutely. bound, so far as the manner in which this accident occurred, by this statement in writing; but you have a right to adduce whatever just inferences you can from the evidence in consideration, taking into consideration all the facts in the case at the time.” If any admission of fact contained in the requisition is to be considered as a declaration [471] of some employee of defendant, it would not be binding on defendant. Subsequently to the happening of the accident, the employees of defendant were without authority to make declarations that might constitute admissions tending to establish defendant’s liability. Such declarations cannot be said to be res gestee, and would not be binding on defendant. Kay v. Metropolitan St. R. Co., 163 N. Y. 447; Goetz v. Metropolitan St. R. Co., 54 App. Div. 365. Moreover it appears on the face of the requisition (Exhibit A) that the declaration, if one, “getting off, sudden start, conductor rang bell too quickly,” was hearsay. The exhibit in question, for the reasons above stated, was improperly received in evidence. It was clearly of a nature calculated to prejudice the jury against defendant, especially in view of the portion of the charge to the jury above quoted, and its admission constitutes an error that demands a reversal of the judgment. Judgment reversed 'and new trial granted, with costs to appellant to abide the event. Blanchabd, J., concurs.