Cunningham v. Metropolitan Street Railway Co. , 60 N.Y.S. 277 ( 1899 )

Ebeedmak, P. J.

This was an action brought by the plaintiff to recover for personal injuries sustained by reason of the alleged negligence of the defendant.

The pleadings were verified, and, in her complaint, the plaintiff swore that the accident, by reason of which she alleged she received the injuries complained of, occurred on the 18th of April, 1898.

It appears, from the record, that the case was first brought on for trial before Mr. Justice Eoesch, and that the plaintiff, upon being sworn as a witness in her own behalf, then testified that the accident happened on the 18th day of Hovember, 1898. Thereupon an amendment to the complaint was allowed by substituting the eighteenth day of Hovember for the eighteenth day of April as the date of the accident, and the defendant, stating that it was taken by surprise at such amendment, and the plaintiff positively insisting that the injuries complained of were received by her on the eighteenth day of Hovember, an adjournment was granted to the defendant.

The case came on for trial a second time before Mr. Justice Moore, and the complaint was again amended by fixing the date of the accident as the 18th day of December, 1898.

The plaintiff testified that the eighteenth day of December was the correct time that the accident occurred, although she had previously testified in open court that it was on the 18th day of Hovember, 1898.

'Hpon the trial, it was claimed by the defendant, that the plaintiff had stated to one of the employees of the company that the accident happened upon December 23, 1898, and, in connection with that testimony, the defendant showed that it had a report of an accident which occurred at the same place as the plaintiff testified the accident happened, but' on the last-mentioned date, and that it had no report of any accident happening at that locality on December 18, 1898. The defendant then called one Gamble as a witness, who testified that he was the conductor on a car of the defendant’s line, in December, 1898, at the place where the plaintiff testified that she met with the accident, that he remembered the accident occurring, that, while he could not swear positively that the plaintiff was the person then injured, that she looked like her, and he was then asked, “ Q. Will you say what you saw with reference to that accident, what you saw and did ? ” This question was objected to by the plaintiff’s counsel, as being incompetent, the objection was sustained, and the defendant thereupon took an exception thereto.

The defendant showed by this witness that he was not then in the employ of the company, having been discharged in February, after the accident.

The jury found a verdict for the plaintiff and the defendant, appealing, urges, among other grounds, that the exclusion of the testimony of the witness above referred to was error, for which a new trial should be ordered.

In view of the very uncertain character of the testimony of the plaintiff, as to the time of the accident, the defendant should have been permitted to have given its version of the circumstances attending the occurrence, which it claimed took place on the 23d day of December, 1898, and the exclusion thereof was error, for which a new trial must be granted. It is true that the judge charged the jury that they must find that the accident happened on the eighteenth day of December, before they could find for the plaintiff, but such charge did not cure the error, because, had the jury been permitted to hear the offered testimony and the circumstances attending the accident of December twenty-third, as the circumstances might have been given by the witness, in answer to the question asked him, the jury might have been convinced that the plaintiff was mistaken as to the date of the occurrence, and that the defendant was not responsible for the accident nor liable in damages. The other questions raised by the appellant need not he considered in view of the foregoing.

MaoLeak, J., concurs; Leventritt, J., taking no part.

Judgment reversed, new trial ordered, with costs to appellant to abide event.