McRorie v. Monroe

• Decision Date: 28 November 1911
• Citation: 96 N.E. 724,203 N.Y. 426
• Parties: McRORIE v. MONROE.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 426

96 N.E. 724

McRORIE

v.MONROE.

Court of Appeals of New York.

Nov. 28, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by William H. McRorie, an infant, etc., against Willaim H. Honroe. From a judgment of the Appellate Division of the Supreme Court in the Fourth Department (138 App. Div. 917,123 N . Y. Supp. 1127) affirming a judgment of the Supreme Court on a verdict in favor of the plaintiff, rendered at the Trial Term, defendant, by permission, appeals. Reversed, and new trial granted.

See, also, 139 App. Div. 928,123 N. Y. Supp. 1128.

Lamont Stilwell, for appellant.

Theodore E. Hancock, for respondent.

WILLARD BARTLETT, J.

At the time of the accident which gave rise to this action, on August 8, 1907, the plaintiff was a lad six years of age residing with his parents on Midler avenue in East Syracuse. Early in the afternoon he was out on that street, drawing a little express wagon, such as children play with. His brother, three years old, was with him. The boys were walking toward James street, down the side of the road, when a team overtook them, driven by a teamster in the employment of the defendant. The horses were drawing a dump wagon. The forward wheel next to the plaintiff passed him without touching him, as he stood at the side of the roadway; but the hind wheel ran over his left foot and injured it to such an extent that three toes had to be amputated. By the verdict the boy has been absolved from all blame for this accident, and it has been attributed to the negligence of the defendant's teamster. This view has also been unanimously adopted by the Appellate Division (138 App. Div. 917,123 N. Y. Supp. 1127), which has found no error in the record sufficient to disturb the judgment.

Our examination of the record has constrained us to reach a different conclusion. It seems to us clear that harmful error was committed (1) in excluding oral testimony as to what the plaintiff had testified upon a previous trial; and (2) in excluding the evidence of witnesses familiar with the mechanism and operation of the defendant's dump wagon, by reason of actual personal experience in using it, as to the possibility of turning it so sharply as to bring the hind wheel in contact with the plaintiff in the manner by him described. The instructions to the jury in respect to the rule of responsibility applicable to the infant plaintiff (in the event of finding that he was non sui juris) were also so confused and contradictory as to be difficult of comprehension by even the most intelligent laymen.

[1] (1) At the place of the accident, an irregular ditch ran parallel with Midler avenue, being separated from the macadam roadway by a space or path 2 or 3 feet wide, along which the plaintiff was drawing his express wagon. The ditch was about 8 feet wide, from one brow or shoulder to the other, and about 2 8/10 feet deep. According to the plaintiff's testimony upon the trial now under review, he had crossed this ditch by means of a bridge of planks, which existed at the time of the accident. When the wagon came along, he said he and his little brother went as close as they could to the ditch and stopped, conveying the idea that the character of the ditch at this point was such as to constitute a substantial obstacle against escape from the collision which subsequently occurred. It, therefore, became very important to the defendant to show, if he could, that the plaintiff had testified differently as to fact bearing upon the character of the ditch on the previous trial. He sought to do this by means of a witness who was present at that trial, heard the testimony which the plaintiff then gave as to the manner in which he crossed the ditch, and remembered it. The learned trial judge refused to allow the defendant to prove by this witness what he heard the plaintiff testify on the former trial, and exceptions were duly taken to his rulings in this respect.

These rulings were plainly erroneous. The defendant was endeavoring to show that the plaintiff had admitted upon the previous trial a course of conduct on his part inconsistent with his contentions upon the present trial. ‘In a civil action, the admissions by a party of any fact material to the issue are always competent evidence against him wherever, whenever, or to whomsoever made.’ Reed v. McCord, 160 N. Y. 330, 341,54 N. E. 737, 740. At common law, whenever it was desired to prove the testimony given upon a former trial, it was always permissible to prove it by the recollection of any person who heard it, and who would undertake to narrate it correctly. In Doncaster v. Day (3 Taunton, 262) Lord Mansfield said: ‘What a witness has sworn may be given in evidence, either from the judge's notes, or from notes that have been taken by any other person who will swear to their accuracy; or the former evidence may be proved by any person who will swear from his memory to its having been given.’ In Johnson v. Powers, 40 Vt. 611, it was said that ‘former evidence may be proved by any person who will swear from his memory to its having been given.’ In McGeoch v. Carlson, 96 Wis. 138, 71 N. W. 116, it was held that a justice of the peace was competent to testify as to the evidence given before him on a former trial. In State v. McDonald, 65 Me. 466, the government, to impeach one of the defendant's witnesses, offered to show that he testified differently, at a former trial, by a witness who was present and heard him testify. The testimony was objected to, on the ground that it was not the best evidence, and that the legally appointed stenographer who took notes of the testimony could give better evidence. The objection was overruled, and the impeaching witness allowed to testify. This action on the part of the trial court was approved by the Supreme Judicial Court of Maine, which said, through Walton, J.: ‘A witness may be impeached by showing that he testified differently at a former trial; and his former testimony may be proved by any one who heard and recollects it. There is no rule of law which makes the stenographic reporter the only competent witness in such a case. The rule which requires the production of the best evidence is not applicable.* * * It has nothing to do with the choice of witnesses. It never excludes a witness upon the ground that another is more credible or reliable.’ These authorities suffice to show the general recognition of the rule which was violated by the refusal to permit proof of the plaintiff's former testimony by a witness who had heard it given.

[2] (2) According...