Henry C. Russell, Appellant, v. Brooklyn Heights Railroad Company, Respondent

Henry C. Russell, Appellant, v. Brooklyn Heights Railroad Company, Respondent. Negligence — rule that an offer to compromise may not be shown — when questions as to a plaintiff’s attempt to settle and the,introduction of letters written by him do-not violate that. rule ■— the improper exclusion of a physician’s testimony is not a ground of objection where the jury find that no accident occurred. In an action brought to recover damages for personal injuries, alleged to have been sustained by the plaintiff through the negligence of the defendant, the latter, who claimed that the accident in question never happened, was allowed to ask the plaintiff, upon cross-examination,' how soon after the accident he attempted to settle the case or make an adjustment of it, and how soon- he made another attempt to settle. The questions, which were objected to, elicited a statement that the plaintiff had written certain letters to the defendant, which letters the defendant subsequently introduced in evidence. Upon an appeal from a judgment entered upon a verdict in favor of the defendant, it was Meld, that the allowance of ths questions did not constitute a violation of the rule that no advantage can be taken of an offer made by way of compromise, it being apparent, notwithstanding the use of the word “settle,” that the questions did not relate to any offer to settle, but were asked simply for the purpose of affording a basis for the introduction of the letters in evidence; That, as the verdict rendered by the jury implied a finding that the alleged accident to the plaintiff never occurred, exceptions taken by the plaintiff to the exclusion of testimony which he sought to elicit from the physician who treated him were immaterial. Appeal by the plaintiff, Henry 0. Russell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 27th day of April, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1903, denying the plaintiff’s motion for a new trial made upon the minutes. Guy C. Frisbie [Isaac P. Hubbard with him on the brief], for the appellant. I. R. Oeland [George D. Yeomans with him on the brief], for the respondent. [MAJORITY — Willard Bartlett, J. :] Willard Bartlett, J. : This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff while endeavoring to cross the railroad track of the- defendant in front of one of its electric cars. .According to his testimony the car. was,' stationary as he approached it, and he hesitated whether to attempt to pass in front of it or not until he received a signal from the motorman to do so, whereupon .he proceeded, and when he had. reached the middle of the track the car, which was standing still; was thrust violently forward upon him by the impact of another car which ran against it from the rear. ' The defense was that no such accident occurred at all, and in support of this. defense abundant evidence was introduced tending to' show that while the alleged collision occurred, and while the plaintiff was present near the place of the accident at the time when it happened, he was not struck by the car or in anywise injured. The issue of fact thus presented was submitted to the jury in á clear and impartial charge, to which the plaintiff too,k no exception, and there is nothing in the record to warrant this court in interfering with the verdict which was rendered for the defendant on the ground that it was against the evidence or against the weight of evidence. The plaintiff was asked upon cross-examination how soon- after the accident he tried to settle the case or make an Adjustment of it and how soon he made another attempt to settle. These questions were objected to, the ¡objection was overruled and the plaintiff excepted. They elicited a statement by the plaintiff that lie wrote to the defendant first on the evening of the accident and again at a date which he could not remember. The letters to which he referred Were subsequently introduced in evidence upon his reerossexamination by counsel for the defendant. Aii exception was. taken- by the plaintiff to their admission, but; it is impossible to determine whether they were erroneously admitted or not, as the letters are not set forth in the appeal book. It is contended that the questions which have been mentioned were improperly allowed as in violation of the rule that no advantage can be taken of an offer made by the way óf compromise. (Tennant v. Dudley, 144 N. Y. 504, and cases there cited.) It is apparent, however, that these questions did not relate to any offer to settle and were not asked for thé purpose of establishing a recognition or acknowledgment of liability,-but that although the word “settle” was used,‘the .purpose of the inquiries was merely to ascertain when the plaintiff had made any claim for damages against the defendant corporation, so that his answer might serve as a basis for the introduction of his letters in evidence. The remaining exceptions relate to the exclusion of testimony sought to be elicited from the physician who treated the plaintiff. These are rendered immaterial by the verdict, which necessarily implies a finding by the jury that the alleged accident, which is the "basis of the action,, never in fact happened. There should be an affirmance of the judgment and order appealed from. ' , Present—Hirsohbeeg, P. J., Bartlett, Woodward, Hooker and Miller, JJ. Judgment and order unanimously affirmed, with costs.