Field v. New York City Railway Co. , 96 N.Y.S. 457 ( 1905 )

Hirschberg, P. J..:

The plaintiff claims to have been injured by the negligent, start ing of one of the defendant’s trolley cars while he was attempting to board it on Third avenue at -Stuyvesant street in the borough of Manhattan. The appellant raises no question on the appeal as to the facts of the accident, but coniines its assertion of- grievance to two rulings at the trial.- -

One of these rulings relates to the reception of the evidence, of the plaintiff’s doctor,, to the effect-that- at the time of the trial the plaintiff was suffering from a varicose vein in the injured leg. Although the doctor admitted that lie could not ascribe it to the accident, the evidence was jumper, inasmuch as it was proven that it did not exist before the accident and was discovered in the injured member immediately afterwards.

But it was error to exclude the evidence offered On the defendant’s behalf designed to show that one of its rules required that a report he made to it of the hajipening of an accident'. The defendant was entitled to insist that no accident had occurred; it was j>ermitted to pro ve that ño report of the accident ljad in fact been made • by the conductor in charge of the car ; and it. was entitled to strengthen and supplement this evidence by comjietent proof that one of its rules required such a report to be made in all cases. (See Shadletsky v. New York City Ry. Co., 88 N. Y. Supp. 1014.),

The judgment should be reversed.

Bartlett, Woodward, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered,, costs to abide the event. .