Carl Carlson, Appellant, v. John Peterson and "Eric" Peterson (the Name "Eric" Being Fictitious, etc.), Respondents

Carl Carlson, Appellant, v. John Peterson and “Eric” Peterson (the Name “Eric” Being Fictitious, etc.), Respondents. First Department, May 3, 1912. Master and servant — negligence—injury to carpenter by breaking timber — evidence — trial — right to recall witness. Plaintiff, a carpenter, brought an action against his employer to recover for personal injuries alleged to have been caused by the breaking of a crosspiece or stringer on which he was piling timbers at the request of the defendant. After describing in detail his injuries plaintiff was asked: “ Q. Mr. Carlson, will you tell the jury just what Mr. Peterson said to you before you started in to pile this lumber?” and “Q. Did Mr. Peterson direct you to pile the beams on this platform there? ” Held, that the questions were proper and the plaintiff should have been permitted to answer, for he had a right to show what the defendant said to him, not only as to doing the work itself, but also as to the manner in which he should do it. The court also erred in refusing to permit plaintiff’s counsel to recall the plaintiff as a witness for the purpose of asking “one further question,” on the ground that the plaintiff had “left the stand.” Unless it appears that a request to recall a witness is not made in good faith, or that he has been fully examined concerning the subject, or the same is immaterial, he should be permitted to take the stand again for ’ further examination. Appeal by the plaintiff, Carl Carlson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 6th day of April, 1911, upon the dismissal of the complaint at the close of plaintiff’s case by direction of the court on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 15th day of March, 1911, directing the dismissal of the complaint. Jeremiah A. O’Leary, for the appellant. Bruce R. Duncan, for the respondents. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: Action to recover damages for personal injuries alleged to have been sustained on account of defendants’ negligence. At the trial the complaint was dismissed at the close of plaintiff’s case. Plaintiff is a carpenter and joiner and on the day of the accident was in the employ of the defendants at the northwest corner of One Hundred and Sixty-sixth street and Washington avenue, where they were constructing a building. The plaintiff testified that shortly prior to the time the accident occurred the defendant John Peterson ordered him to take some timbers which were in the street and pile them so they could be raised whenever necessary during the progress of the work; that these timbers were from twenty-four to twenty-seven feet long, ten inches wide and three inches thick; that he did as directed, piling the timbers on crosspieces or stringers’which were eighteen feet long, ten inches wide and three inches thick, and so placed that one end of them rested upon the ground and the other upon blocks or supports some six or ten inches from the ground; that he had been thus engaged for a short time when one of the stringers broke and a pile of the timbers which had been placed thereon fell onto him and broke both bones of one leg between the ankle and knee. After describing in detail his injuries, and what was done with him after the accident, he was asked: “Q. Mr. Carlson, will you tell the jury just what Mr. Peterson said to you before you started in to pile this lum- ■ ber ? ” and “ Q. Did Mr. Peterson direct you to pile the beams on this platform there ? ” Both questions were objected to and the objections sustained, to which exceptions were duly taken. The questions were proper and the witness should have been permitted to answer. The plaintiff had a right to show what the defendant said to him, not only as to doing the work itself, but also as to the manner in which he should do it. It is unnecessary to speculate on what the answers would have been, but it is not difficult to imagine that they might have been of vital importance so far as determining defendants’ liability. I am also of the opinion that the • court erred in refusing to permit plaintiff’s counsel to recall the plaintiff as a witness for the purpose of asking “one further question.” The request was refused on the ground that “He has left the stand.” A trial is for the purpose "of getting at the truth and unless it appears that a request to recall a witness is not made in good faith, or that he has heen fully, examined concerning the subject, or the same is immaterial, then he should be permitted to again take the stand and .be further examined. These facts did not here appear. Upon both grounds, therefore, it seems to me the judgment should be reversed and a new trial granted, with costs to appellant to abide event. Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.