Sherman v. Delaware, L.&W.R. Co.

• Citation: 13 N.E. 616,106 N.Y. 542
• Court: New York Court of Appeals
• Decision Date: 04 October 1887
• Parties: SHERMAN v. DELAWARE, L. & W. R. CO.

106 N.Y. 542

13 N.E. 616

SHERMAN

v.DELAWARE, L. & W. R. CO.

Court of Appeals of New York.

October 4, 1887.

Hamilton Odell, for appellant.

L. B. Treadwell, for respondent.

PECKHAM, J.

The plaintiff brought this action to recover damages alleged to have been sustained by him through the negligence of defendant's servants. He was a passenger on one of the defendant's trains, and was going, in September, 1882, from Hoboken to Murray Hill station. He took the train at 5:20, and was approaching his destination about 6:40. The plaintiff says he heard a whistle which he supposed was meant for his station, and got up from the seat in which he was sitting, and walked to the other end of the car to get some of his baggage, which having done he was returning to his former seat, when, in passing along the aisle, he tripped, and fell over a board stretching across it from under one seat to the one immediately opposite, which board had been placed there by a brakeman in order to reach and light one of the lamps in the car. The plaintiff says that he was badly hurt, and he claims to recover his damages from the company, based upon the alleged negligence of the brakeman in leaving the board there while he went to the end of the car to attend to some duty consequent upon the approach of the train to the station. It was getting rather dark in the car at the time of the accident, and the board was raised from the floor about 15 inches; and the plaintiff, while proceeding, as he says, with ordinary care, failed to see the board, which was so securely fastened in its place as not to yield, and it thus caused the accident. There was a dispute as to the time when the board was placed there by the brakeman; the plaintiff alleging it was between the time he passed down the aisle for his baggage and his return to his seat, while the brakeman alleged that he was standing, or just preparing to stand on the board, when the plaintiff came up, and asked him to let him pass, which he did; and in doing so cautioned him to be careful about or to look out for the board. After the brakeman had given this testimony, on his direct examination, the plaintiff's counsel asked him what conversation he had with the plaintiff on that day while on the train to Murray Hill station. This was objected to by defendant's counsel as incompetent and immaterial, which being overruled, he excepted, and the witness answered that he had none,-not a word. He was again asked if he did not state to the plaintiff that he had forgotten to move or slide back to its place the board on which he had stood, and that it was his fault,-that he was careless. This was also objected to, the objection overruled, and the defendant's counsel excepted. The witness then answered, and denied that he had stated any such thing. The plaintiff was subsequently recalled, and asked by his counsel if he had any conversation with the brakeman in relation to the accident on the day it occurred, and he answered that he had; and, under objection and exception by defendant's c...