Sadie Bernstein, an Infant, by Abraham Bernstein, Her Guardian ad Litem, Respondent, v. The Empire Bridge Company, Appellant

Sadie Bernstein, an Infant, by Abraham Bernstein, Her Guardian ad Litem, Respondent, v. The Empire Bridge Company, Appellant. Second Department, October 6, 1911. Negligence — vehicles — running over child — evidence — impeaching one’s own witness. A party cannot use a signed statement which he has procured from one of his own witnesses before trial to impeach the testimony of the witness upon the trial of the action. Evidence in an action to recover for personal injuries alleged to have been caused by the negligence of defendant’s driver in running over plaintiff’s foot examined, and held, that a judgment for plaintiff should be affirmed. Jerks, P. J., and Burr, J., dissented. Appeal by the defendant,. The Empire Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of June, 1910, upon the verdict of a jury for $4,750, and also from an order entered in said clerk’s office on the 21st day of July, 1910, denying the defendant’s motion for a new trial made upon the minutes. Frank V. Johnson, for the appellant. William H. Griffin [Martin T. Manton with him on the brief], for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The plaintiff’s recovery is for serious injuries inflicted upon her by the alleged negligence of the defendant in the daytime in June, 1907, in one of the public streets of the borough of Brooklyn. She was sitting on the curbstone with her feet in the gutter at the time, an older sister in charge of her being near by. A heavy truck of the defendant was being driven through the street at the time at considerable speed and in a very careless manner, and, coming in contact with one of the plaintiff’s feet, injured it so severely as to require its amputation. There was evidence, that the driver was not looking in the direction in which he was driving at the time of the accident, hut that he was looking across the street to the opposite side from that on which the plaintiff was sitting, and that the lines of the horses . were loose and not in his hands. The vehicle did not stop after the' accident, hut continued its course. The questions relating to the defendant’s negligence and to the contributory negligence of the plaintiff or of those in charge of her were properly submitted to the jury and require no discussion. The appellant, however, urges that it was error on the part of the learned trial court to reject a signed statement which it had procured before the trial from one of its own witnesses, and which it desired to use for the purpose of impeaching the testimony of such "witness in its behalf. Some authorities are cited in foreign jurisdictions in support of the appellant’s contention, but it finds no support in this State. (See, to the contrary, Becker v. Koch, 104 N. Y. 394; Fall Brook Coal Co. v. Hewson, 158 id. 150, 152; Koester v. Rochester Candy Works, 194 id. 92, 97.) The judgment and order must be affirmed. Thomas and Carr, JJ., concurred; Jenks, P. J., and Burr, J.,. dissented. Judgment and order affirmed, with costs.