Kay v. Metro. St. Ry. Co.

• Decision Date: 19 June 1900
• Citation: 163 N.Y. 447,57 N.E. 751
• Parties: KAY v. METROPOLITAN ST. RY. CO.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 447

57 N.E. 751

KAY

v.METROPOLITAN ST. RY. CO.

Court of Appeals of New York.

June 19, 1900.

Appeal from supreme Court, appellate division, First department.

Action by Catherine Kay against the Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, affirmed by appellate division (62 N. Y. Supp. 1139), defendant appeals. Reversed.

Charles F. Brown, for appellant.

George H. Hart, for respondent.

O'BRIEN, J.

On the 29th of January, 1895, the plaintiff was a passenger on the defendant's road, and was injured in a collision. The questions presented by this appeal arise entirely upon exceptions taken by the defendant during the course of the trial. It appeared that a heavy snowstorm had set in early in the evening of the accident, and about four inches of snow had already fallen. While the car in which the plaintiff was a passenger was going down a steep incline, it got beyond the control of the driver, although the brakes were set, and the wheels prevented from revolving, and it slid down the hill, and collided with another car, in which collision the plaintiff was injured.

On the trial the defendant's counsel called the conductor of the car as a witness, who described the manner in which the accident happened; how the car commenced to run rapidly after it began to descend the hill; how the driver used the brake, and the car commenced to slide down the hill, and finally collided with the other car. On cross-examination, the plaintiff's counsel propounded to the witness the following question: ‘Did you not tell Mrs. Shech that you reported that the car was in no fit condition to be out, and you reported it to the office before you left, and leave your name and address with her, and tell her that you would come when she wanted you, and that you were obliged to jump from the car, and that was the only thing you could do?’ This was an inquiry concerning new matter as to which the witness had not testified on the direct. He had said nothing whatever about the condition of the car, or any admissions made to Mrs. Shech. The question, therefore, did not tend to impeach the witness, but to prove his declarations to a third party after the accident, tending to show that he was at that time willing to help the plaintiff in her case. But he could not bind or affect the defendant by any admissions or declarations, after the accident, made to third parties. They were admissible only to contradict or impeach him as a witness for the defendant in case he had testified to anything inconsistent with them; but he had not. The defendant's counsel had not asked him anything about the condition of the car, or the quality of the brake, and on all these matters the plaintiff made him her own witness. No objection was made to the question, however, and the witness answered in the negative. The plaintiff's counsel subsequently called Mrs. Shech as a witness, and she testified that she had a conversation with the conductor at her house, after the accident, and then propounded to her the following question: ‘Did he not say to you at your house, after the accident, that he reported that this car was not in a fit condition to be out, and that he made a report of it to the office before he left, and leave his name and address with you, and tell you that he would come when you wanted him, and that he had to jump from the car, and that was the only thing he could do?’ This question was objected to by counsel for the defendant as incompetent and immaterial, and that the admissions or declarations of the witness were inadmissible against the defendant. The objections were overruled, and defendant's counsel excepted. The answer of the witness was in the affirmative, but we think the plaintiff was not entitled to it. It did not tend to impeach the witness, since he had not testified to anything of which it was in any sense a contradiction, and his declarations with respect to the cause and circumstances of the accident, after it occurred, were not binding upon the defendant. The plaintiff's counsel could not lay the foundation for impeaching the conductor by asking questions on cross-examination which had no relation to or effect upon his direct testimony, but was new matter, drawn out by himself, and which should have been excluded had it been objected to. There being no objection, the conductor's answer was in the case for what it was worth, but it bound the party that called for it, and he had no right to contradict it.

When the conductor was on the stand, the plaintiff's counsel asked him if he had not stated to the plaintiff, after the accident, in the presence of her daughter, that she did not need any other witness but himself; that the car was not fit to be taken out, and that the brake was no good, and that she could win the case on his testimony without any other witnesses. The witness denied that he had so stated. The plaintiff then called the daughter, who testified that she was present at a conversation between her mother and the conductor some eight weeks after the accident. The question was then propounded to her whether he had not stated to her mother, in her presence, the matters and things above stated which the conductor had denied. A proper objection was made to the question, which was overruled, and an exception taken, and the daughter contradicted the conductor. The same...