Martin v. New York, N.H.&H.R. Co.

• Decision Date: 17 December 1886
• Citation: 103 N.Y. 626,9 N.E. 505
• Parties: MARTIN, General Guardian, etc., v. NEW YORK, N. H. & H. R. Co.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 626

9 N.E. 505

MARTIN, General Guardian, etc.,

v.NEW YORK, N. H. & H. R. Co.

Court of Appeals of New York.

December 17, 1886.

Appeal from supreme court, city and county of New York, First department.

This action was brought by plaintiff to recover damages from defendant for the killing of plaintiff's father, William T. Quigley, caused by the negligence of defendant. Testimony was introduced at the trial showing the statements made by Quigley, after the fatal injury was received, and while being carried from the scene of the accident, as to the manner in which the accident happened. Judgment for plaintiff. Defendant appeals.

What Quigley said after the accident happened formed part of the res gestoe, and was admissible. Tilson v. Terwilliger, 56 N. Y. 273;Casey v. New York Cent. & H. R. R. Co., 78 N. Y. 518;Waldele v. New York Cent. & H. R. R. Co., 95 N. Y. 274, 283, 284;Com. v. Hackett, 2 Allen, 136;Insurance Co. v. Mosley, 8 Wall. 397.

The court erred in admitting evidence of what Quigley said after the accident happened. It was offered to prove, by the unsworn declaration of the deceased after the accident, the vital proposition of the plaintiff's case. It was no part of the res gestoe. Waldele v. New York Cent. & H. R. R. Co., 95 N. Y. 274;People v. Murphy, 101 N. Y. 126; S. C. 4 N. E. Rep. 326; Bigley v. Williams, 80 Pa. St. 107; 2 Whart. Ev. § 1174.

Thomas P. Wickes, for respondent, Martin, General Guardian, etc.

Frank Loomis, for appellant, New York, N. H. & H. R. Co.

RAPALLO, J.

The decision of this appeal is controlled by the case of Waldele v. New York Cent. & H. R. R. Co., 95 N. Y. 274, in which it was held, after much discussion, that the declarations of a person who had been fatally injured upon a railroad, made after he had sustained the injuries, explaining the manner in which the accident had happened, were not competent evidence in favor of his administratrix, in an action brought by her against the railroad company for causing his death by negligence. The plaintiff was allowed to prove in the present case, under objection and exception, that, after the deceased had been taken out from under the car by which he had been injured, and while he was being conveyed to the switch-house by his fellow-employes, some one asked him how the accident had happened, and he said: ‘I pulled the pin, and made a grab for the car, and there was nothing there for me to grab.’ Another version given by the witness was that deceased said he cut off the car, and made a grab for the handle of the car, and there was nothing there for him.

The deceased was an employe of the defendant, and the sole ground upon which the plaintiff's claim to recover was founded was that the car which he was directed to detach from the train was not furnished with a horizontal grab-handle on its end, and that that alleged defect was the cause of the injury. The testimony thus erroneously admitted therefore tended to sustain the vital point of the plaintiff's case.

The learned counsel for the respondent seeks to avoid the effect of the erroneous...