Mulligan v. Third Avenue Railroad

Hatch J.

(concurring):

I concur with Mr. Justice Patterson in the view which he has taken of the evidence in this case and the inferences he draws therefrom, that the plaintiff was entitled to have the case submitted to the jury upon the questions of the defendant’s negligence and the plaintiff’s freedom from contributory negligence. Mr. Justice Patterson’s discussion of this matter is entirely satisfactory to me, and I concur therein. I am unable to conclude, however, that no error was committed in permitting the question to .be asked as to what the plaintiff testified to upon the former trial. The basis for this ruling was made to depend upon the cross-examination of the plaintiff, and the ruling is sought to be supported upon the ground that the evidence given by the plaintiff upon the redirect examinatian tended to qualify or explain the matter to which the cross-examination had been directed. The difficulty is that the evidence given upon the redirect examination upon this subject did not tend to qualify or explain the questions or answers given upon the cross-examination relating thereto. For the most part there were no answers given by the plaintiff relating to this matter. Practically it developed a mere lack of recollection, and so far as she gave any affirmative testimony in answer thereto, it cannot be said that the subsequent question and answer, upon the redirect- examination, qualified or explained it as matter of fact, or if so, it greatly exceeded anything which is qualified or explained. On the contrary, the plaintiff’s counsel condensed the whole of the witness’ testimony upon this subject given upon the former trial into one question, and the court permitted it to be answered. In substance and effect, this permitted the plaintiff to testify to declarations which she had made upon the former trial, and it became a subject for the present consideration of the jury. It was not an explanation or qualification of the cross-examination upon this matter and' was, therefore, improper and falls under condemnation. (Matter of Chamberlain, 140 N. Y. 393; Suffolk County v. Shaw, 21 App. Div. 148.)

The charge of the court that the car was running at the rate of eight or nine miles an hour before it struck the plaintiff, and its reiteration, bore upon a subject vital to the plaintiff’s case and was of very doubtful propriety. I should hesitate about reversing this judgment upon such ground, but the admission of the testimony above adverted to seems to present clear error. I am in favor, therefore, of reversing this judgment and granting a. new trial.