Barnett Berkowsky, as Administrator, etc., of Bessie Berkowsky, Deceased, Respondent, v. New York City Railway Company, Appellant

Barnett Berkowsky, as Administrator, etc., of Bessie Berkowsky, Deceased, Respondent, v. New York City Railway Company, Appellant. First Department, July 8, 1908. . Evidence — hostile witness—prior statements out of court inadmissible — negligence—failure of proof. While a party who is 'surprised at finding that a witness believed to be favorable is in fact adverse may cross-examine him and put leading questions, and the extent to which this may he done is generally within the discretion of the presiding judge, yet he may not impeach the witness by reading from a memorandum book kept by the witness showing that he had previously made contradictory statements when the witness says his memory is clear and needs no ■ refreshing. Where in an action to recover for personal injuries the only evidence to support a verdict for the plaintiff is that contained in the memorandum of the plain-, tiff’s witness erroneously put in evidence as aforesaid, it is error to refuse to charge that no verdict can be rendered against the defendant upon the testimony of that witness. 1 Appeal by the defendant, the ¡New York City ¡Railway Company, 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 27th day of Hay, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of Hay, 1907, denying the defendant’s motion for a new trial made upon the minutes. Charles F. Brown, for the appellant. James H. Hickey, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: The plaintiff has recovered a judgment for damages for the death of his wife, who was injured by falling from the platform of one of defendant’s cars. The complaint alleges that the car had come to a standstill and plaintiff’s intestate attempted to alight therefrom but before she had a reasonable time to do so and while she was in the act of alighting therefrom, the car suddenly started up with a jerk .and she was thrown violently to the ground. The crucial question in the case was whether or not the car had stopped before the deceased fell or was thrown off, the defendant contending thát she was standing on the platform and fell off before the car had stopped. The plaintiff called as one of his witnesses a police officer named Levy, who testified that he saw the car approaching the point where the accident occurred and saw the deceased standing on the front platform, and that just before the car .came to a standstill it gave a jolt, and the woman fell from the platform. On cross-examination he reiterated the statement that the car came to a standstill' after the deceased fell. It also appeared on cross-examination that the witness had a book in which he made a memorandum of the occurrence. Upon redirect examination, notwithstanding the witness’ repeated and persistent declaration that his memory was perfectly clear and needed no refreshing, the plaintiff was permitted to read to the witness extracts from his memorandum apparently contradictory to the testimony then given at the trial, and finally, was permitted to read the whole memorandum im evidence. To all this due objection and exception was taken, and it is clear that thereby reversible error was committed. There is no doubt that where a party is surprised at finding that a witness believed to be favorable is in fact adverse, it is permissible to cross-examine the witness and to put leading questions to him, and the extent to which this may be done is, generally speaking, within the discretion ■ of the presiding judge. But there are limitations to the application of this rule, and one of them is that a party may not impeach his ow-n witness by showing that he has previously made contradictory statements out of court. (Coulter v. American Merchants’ Union Ex. Co., 56 N. Y. 585; Nichols v. White, 85 id. 531; Becker v. Koch, 104 id. 394 ; Maloney v. Martin, 81 App. Div. 432; O’Doherty v. Postal Telegraph-Cable Co., 113 id. 636.) In the present case the only and the obvious purpose of calling attention to the contents of the memorandum was to impeach and discredit'the witness. His testimony that the. deceased fell off the car before it had stopped was clear and positive and corresponded with the evidence previously given by him at the coroner’s, inquest. He insisted that his memory needed no, refreshing, and even if it had it would not have been proper to read to the jury the contents of the memorandum, and niost of all it was error to permit the memorandum to be read in evidence. It is insisted that this memorandum was not permitted to be introduced as general evidence in the case, but the course of the trial indicates that it was so used. At the close of the case the defendant ..requested the court to charge that “no verdict can be rendered against this defendant upon the testimony of the police officer Levy.” This charge the court refused to make, saying that tha,t was entirely a question for the jury. How the only testimony that the officer had given upon the crucial point of the case was such that if believed a verdict for the defendant must follow. The only evidence elicited upon the examination of the officer which would justify a verdict for the plaintiff was the statement contained in the memorandum. When, therefore, the court, by its refusal to charge as requested, left it to the jury to bring in a verdict upon the testimony of the officer it necessarily held that such a verdict could be rendered upon the memorandum. It is impossible to say that these errors did not affect the verdict, and the judgment appealed from must, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. Ingraham, McLaughlin, Laughlin and Houghton, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.