Damchuk v. Public Service Railway Co.

Per Curiam.

This is an appeal by the Public Service Railway Company, the defendant below, from a judgment entered against it in the District Court of the Second Judicial District of Essex county. Two suits were instituted against the Public Service Railway Company to recover damages arising from a collision between an automobile and a trolley car which occurred on Market street, in the city of Newark. The owner of the automobile, Stanley Sternick, instituted one. The plaintiff, Barbara Damchuk, a passenger in Sterniek’s automobile, instituted the other. She obtained the judgment now appealed from. The court, in the Sternick case, decided that Sternick and the Public Service Railway Company were both negligent and gave judgment for the public service company. In the present case the sole ground of appeal is that the court excluded testimony bearing on the condition, as to whether drunk or sober, of Sternick and Barbara Damchuk. This evidence was admissible. Searles v. Public Service Railway Co., 126 Atl. Rep. 465; Castner v. Sliker, 33 N. J. L. 95. The error in the rejection of the testimony by the trial court appears to be admitted by the respondent, but the respondent claims that a witness by the name of Herman Crawsawski testified on this subject. He said, “Why, yes. I smelt liquor from the three occupants of that automobile.” It is claimed that this cured the error. In our opinion this did not cure the error. This witness did not testify as to the drunkenness or sobriety of Sternick and the respondent, but as to whether he smelled liquor upon them. They may have smelled of liquor and not have been drunk. Moreover, the defendant was entitled to cumulative evidence on this branch of the case.

This error makes necessary a reversal of the judgment obtained by the plaintiff below and the remission of the case for retrial.