Moloney v. Pub. Serv. Ry. Co.

• Decision Date: 06 March 1919
• Parties: MOLONEY v. PUBLIC SERVICE RY. CO.
• Court: New Jersey Supreme Court

106 A. 376

MOLONEY

v. PUBLIC SERVICE RY. CO.

Court of Errors and Appeals of New Jersey.

March 6, 1919.

Suit by Thomas J. Moloney, administrator ad prosequendum of the estate of Aaron F. Burtt, deceased, against the Public Service Railway Company. Judgment for defendant and plaintiff appeals. Reversed to the end that venire de novo may issue.

Howe & Davis, of Orange, for appellant.

Lefferts S. Hoffman and Leonard J. Tynan, both of Newark, for respondent.

WALKER, Ch. This suit was brought for damages for the death of plaintiff's decedent, who, while riding in an automobile, was run into by a trolley car of defendant and killed. From a judgment for defendant entered on the verdict of a jury plaintiff appeals to this court.

The first objection is based upon the ruling of the trial judge as to the admissibility of certain questions asked of one of defendant's witnesses on cross-examination. The motorman bad testified for the defendant as to the operation of the trolley car, etc., and on his cross-examination the following took place:

"Q. Well, after the accident you walked up the street with an officer, did you not? A. No, sir; I was taken up in an automobile.

"Q. Well, you went with an officer? A. Yes, sir.

"Q. Was that Officer Curtin? A. Well, I think it was; I wouldn't say positively, but I think it was the same man.

"Q. Did you not say to Officer Curtin—

"Mr. MacSherry: One moment. I want to object to anything that this witness said to anybody. I do not know what it is, but certainly he is not competent to bind this company.

"Mr. Davis: I submit that upon the cross-examination of this witness anything that would go to impeach the credibility of his testimony would be competent. Anything that he said in contradiction of his testimony now, at any former time, I submit, would be competent.

"The Court: I have never known a question of this kind to be answered.

"Mr. Davis: Not as binding upon the company, if your honor please, but as impeaching the credibility of his testimony. In other words if he testified here to a certain thing, and I asked him whether on a certain other occasion he did not make a statement to another witness different from the testimony that he is giving here, I submit that that is proper cross-examination, and it goes to impeach the credibility of his testimony.

"The Court (after argument): If you find any case that authorizes the question with respect to this class of employes, I shall follow it, of course; but at present I shall stand by what I understand to be the general rule applicable to employes, whose business it is to act, and not to speak, not to make statements.

"Mr. Davis: May I frame the question and have your honor rule upon it?

"The Court: Certainly; ask your question.

"Q. Mr. Haberstick. did you not say to—

"The Court: No; that will not do; you cannot ask a question that will bring before the jury any statement that you claim that the witness made. * * *

"Mr. Davis: I desire, then, to ask the witness a question which would lay the foundation for me to present on rebuttal, testimony of one or more witnesses that—

"The Court: As to statements made by him which you say were inconsistent with his present testimony?

"Mr. Davis: Yes, sir; that immediately after the accident, and on Main street, Orange, in the vicinity of the accident, he made to Officer Curtin, of the Orange police force, a statement which, if true, would go towards contradicting the testimony now given by him on the stand.

"The Court: Yes.

"Mr. MacSherry: That I object to.

"The Court: I sustain the...