Rosalie Paquet, Respondent, v. The Nassau Electric Railroad Company, Appellant

Rosalie Paquet, Respondent, v. The Nassau Electric Railroad Company, Appellant. Second Department, June 29, 1908. Witness — suspicious circumstances — latitude of cross-examination. In an action for personal injuries-claimed to have resulted from the negligent starting of a car as the plaintiff was about to alight, the plaintiff's testimony was corroborated by two other witnesses. The company had no notice of the accident, and the conductor and motorman testified that no such accident occurred. The plaintiff did not call a physician for some days, and learned of the witnesses by advertising. The deposition of one of the witnesses was taken on stipulation, because it was claimed that she was about to go to Panama to engage in the government service. She did not go to Panama, hut was in Pennsylvania at the time of the trial. In the deposition read on the trial she testified that she was a passenger on the car; that she saw the occurrence; that she shouted to the conductor and motorman to stop, but they paid no attention; that she called out the number of the car to the plaintiff, who was then “lying in a heap ” where she had fallen on the ground; that the car-did not stop until it had gone two blocks, and then proceeded on its way, no one going back to render any assistance. The witness and plaintiff testified that they had never- seen each other before the accident, but plaintiff subsequently qualified her statement by saying that to. the best of her knowledge she had not known the witness and had not previously written to her, and she subsequently testified that she would not swear positively whether she had written the witness regarding the extension or renewal of a chattel mortgage on some of ■ the witness’ furniture. A witness for defendant testified that he knew the witness, had frequently heard her mention the plaintiff prior to the accident, and had once seen a letter purporting to have been written by the plaintiff to the witness in reference to a chattel mortgage. Upon cross-examination the plaintiff, it, appeared, had corresponded with the witness in Pennsylvania for some time before the trial. Held, that it was reversible error, in view of the suspicious circumstances that had developed, to refuse to permit the defendant’s counsel to cross-examine plaintiff as to the subject of her correspondence with the witness. Appeal by the defendant, the Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the1 office of the cleric of the county of Kings on the 28th day of January, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of February, 1Q08, denying the defendant’s motion for a new trial made upon the minutes. D. A. Marsh [George D. Yeomans with him on the brief], for the appellant. Albert E. Richardson, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: This is an action to recover for personal injuries resulting, from negligence. The plaintiff’s story is corroborated by two witnesses and is to the-effect that as she was attempting to alight from one of the defendant’s cars, at the corner of Fifth avenue and Park place, the conductor signaled the motorman to go ahead, and. the car suddenly started, throwing the plaintiff violently to the ground, and proceeded on its way without stopping. One of the corroborating witnesses testified that, she observed the accident from the street corner, where she was waiting to board the car from which the plaintiff was thrown, but did not do so"; that she did not go to the plaintiff’s assistance, although the' latter lay in the street some little time before any one came to her assistance. The other witness, whose deposition, taken pursuant to stipulation^, was read upon the trial, testified that she was a. passenger on > said car ; that she saw the occurrence; that she and several other passengers jumped up; that she shouted to the conductor and motorman to stop, but that they paid no attention; that she called out the number of the car to the plaintiff, who, she.says, was then-lying “in a heap” where she.had .fallen on the ground ; that there was considerable excitement among the passengers, but that the car did not stop until it had gone two blocks, and then' it proceeded without any one going back to ascertain whether the plaintiff was injured, or to render her any assistance. When the deposition of said witness was taken she said that she was about to go to Panama, where she expected to engage in the government service as a nurse; she" did-not.go to Panama, however, and at the time of the tidal was in Pennsylvania. The defendant had no report of the alleged accident, but the conductor and' motorman of the car, whose . number' was given by ■ the plaintiff, were called and testified that no such accident occurred. The plaintiff did not call a physician until some days after the alleged accident; she learned, of her two corroborating witnesses by inserting an advertisement in the. paper. She testified that before the accident she had noted the number of the car because of a dispute with the conductor over change, and the witness who claims to have been a passenger testified that she made a memorandum of the number of the car and the circumstánce of the accident, although she did not have sufficient concern about the plaintiff’s immediate welfare to render her any assistance. The plaintiff and said witness both testified that they had never seen each other before the accident, but the plaintiff qualified her statement by saying that to the best of her knowledge she had never known the witness, and that to the best of her knowledge she had never written her before the- accident. Later on she was recalled for further cross-examination and, after testifying that she had not written said witness in reference to arranging for the extension or renewal of a chattel mortgage on some furniture belonging to the witness, finally said that she would not swear positively on the subject; that she did not remember.' A witness was called by the defendant who testified that he knew said witness and had frequently heard her mention the plaintiff before the date of the accident, and that upon one occasion he saw a letter purporting to have been written by the plaintiff to her in reference to a chattel mortgage. .While the testimony of the witness last aforesaid standing alone would be of little consequence and while the question of the prior acquaintance of the plaintiff and her said witness was a collateral matter, it was important in view of the suspicious circumstances hereinbefore related. During the cross-examination of the plaintiff the importance of showing the relations between the plaintiff and her said witness was developed, and it appeared that said witness had not gone to Panama, although that was the excuse for taking her deposition as aforesaid, but that she was then .living in Pennsylvania, and had been corresponding with the plaintiff for some time before the trial. The defendant’s counsel then undertook to examine the plaintiff in. reference to said correspondence, to show its nature, the subjects discussed, and the relation existing between the plaintiff and said witness, but the objection of the plaintiff’s counsel to that line of examination was sustained. In view of the suspicious circumstances which had already been developed, the court should have permitted the widest latitude on cross-examination respecting matters which might' have any relevancy. We do not need now to say whether upon the facts we should suffer this verdict to stand. The case' is at least so doubtful that ■any erroneous ruling may have been prejudicial. Said correspondence was a proper subject for cross-examination. The plaintiff had .been forced to qualify her denial of a previous acquaintance with said witness; and a skillful examination in reference to said correspondence might have elicited statements that would have changed the result of the trial. ■ The judgment and order should be reversed. Jenks, Hooker, G-aynor and Rich, JJ., concurred. Judgment and order reversed and new trial granted, costs' to abide the event.