Francis Dorry, Respondent, v. Union Railway Company of New York City, Appellant

Francis Dorry, Respondent, v. Union Railway Company of New York City, Appellant. Denials by a motorman of having made statements after an accident, when called, out by the plaintiff’s attorney on cross-examination, cannot be contradicted by . other witnesses called by the plaintiff. In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of a collision between a truck which he was driving and one of the defendant’s motor cars, the defendant called the motorman as a witness who testified on his' direct examination that he was the motorman of the car; that he went to the office of the plaintiff’s attorney prior to the trial of another action growing out of the same accident, and that he was not in the defendant’s employ. The plaintiff’s counsel, upon cross-examination, asked the motorman whether he had not made certain statements to the plaintiff’s attorney subsequent to the accident. The witness having denied making the statements, the plaintiff was allowed, upon rebuttal, over the defendant’s objection, to show by another witness that the motorman did make the statements in question. Held, that as the defendant had not examined the motorman with respect to the accident or in respect to the alleged statements, the plaintiff, when, cross-examining the motorman as to such statements, made the motorman his own witness and was not, therefore, entitled to contradict the motorman’s denial that he made the alleged statements. Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of June, 1904, upon the verdict of á jury for $2,000, and also from an order entered in said clerk’s office on the 20th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes. Bayard H. Ames, for the appellant. Jacob Steinhardt, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The plaintiff was the driver of a truck which was run into by one of the defendant’s cars, and this action is brought to recover the damages sustained by him in consequence of the collision. Upon the trial the defendant called the motorman, who testified that he was the 'motorman of the car; that he went to the plaintiff’s attorney’s office prioi* to the' trial of another ■ action .brought against the same defendant by another man upon the truck at the time of the collision, and that he was not working for the defendant. ■This was the only testimony that he gave for the defendant. Upon- cross-examination plaintiff’s .counsel asked him about statements, that he had made to the plaintiff’s attorney subsequent to the accident," the witness denying that he made certain, statements about which he was interrogated. He was then asked about his testimony Upon the trial of the other action against the defendant' and testified as to his evidence upon the other trial. Upon rebuttal an attorney in the office of the plaintiff’s attorney was called and testified that he was present at an interview between this motorman and one of the plaintiff’s attorneys and was asked as to admissions made by the motorman to the plain-? tiff’s .attorney Us to the accident. This was objected to by the defendant, the" objection overruled .and the defendant excepted. The witness then testified that the motorman stated to one- of the plaintiff’s attorneys that at the time of the accident the car was going between twenty and twenty-five miles an hour, was going as fast as it could .go, with both motors on; that one of' the plaintiff’s ■attorneys asked him, “ Were you standing when you first saw the truck ? ” to which the motorman replied, “ I was standing in the ■doorway about four feet six inches away from the controller with; my right side towards the-door and my left side towards the front of the car.;. I had just, been talking to. the conductor;” that the attorney then asked him, “.Why were'you inside of the car; were you cold?” to which the motorman said, “No, there were other reasons,” and- when asked what the. other reasons were he said, “ Well, my hours were too-long; I had been working since five o’clock, 'the evening before and this- was more than twelve hours already ; I was tired;”- that he .further said that when he first saw the t truck it was not more than eight yards from him; that he heard1 U shout, and turned around and reversed his power at five points and. put on the brake, but that he was too late; that the motorman further .said that he was standing on the front platform of the car with his left hand on the‘left side of- the doorway .with his back towards the front of the car; that at a,subsequent interview the motorman told one of the plaintiff’s attorneys that an investigator from the railroad company had called on him the night before and had offered him ten dollars a day to testify for the company ; that when he refused to make any statement to the inspector : the inspector then offered to pay him any sum he wanted to testify for the company: This was all taken under the objection and exception of the defendant. I think this was error that requires a reversal of the judgment. The motorman was called as a witness by the defendant and was asked as to whether he was the motorman and whether he was then in the employ of the company. Upon cross-examination by the plaintiff’s attorney he was asked as to whether or not he made these statements to one of the plaintiff’s Attorneys, which he denied having done. The declaration of the motorman, made long after the accident, was not competent evidence against the defendant, and when the plaintiff’s attorney asked him about this interview, long after the accident, lie made the witness bis own, and as these conversations were collateral, he could not contradict them by proving what the motorman did say. The cross-examination had no relation to anything that the witness had testified to upon his direct examination. He was not asked by the defendant anything about the accident, or his position in the car at the time of the collision, and the question as to what statements the witness made to one of the plaintiff’s attorneys had nothing to do with the testimony that the witness had given on his direct examination. Plaintiff was not, therefore, entitled to introduce these declarations of the motorman to contradict any testimony that the witness had given for the defendant. This question of the position of the motorman at the time of the injury was most material and, if true, fully justified a finding of negligence. As it was •clearly incompetent, we are required to reverse the judgment. It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event. Yan Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., •concurred. Judgment aiid order reversed, new trial ordered, costs to appellant to abide event.