Opinion
December 31, 1914.
J. Brownson Ker, for the appellant.
J. Ralph Hilton, for the respondent.
This action was brought in the County Court of the county of Bronx to recover damages for personal injuries alleged to have been sustained by plaintiff while getting off one of defendant's cars. The defendant had a verdict, and from the judgment entered thereon and an order denying a motion for a new trial plaintiff appeals.
The plaintiff's testimony was to the effect that while she was getting off the car it was suddenly started and she was thrown to the ground and injured. Her testimony as to the car starting while she was getting off was uncorroborated. The testimony of three witnesses on the part of the defendant was to the effect that plaintiff stepped from the car while it was in motion and in this way her injuries were sustained. The jury, as indicated by its verdict, necessarily found that the plaintiff stepped from the car before it had come to a stop, and by reason of that fact she was not entitled to recover. The evidence fairly sustains the finding of the jury and we would have no hesitancy in affirming the judgment, except for an error in the admission of evidence. Defendant's witness Fitzpatrick, the conductor of the car, testified that after he had signaled to the motorman to stop the car, and before it had come to a full stop, the plaintiff started to get off; that he put his hand on her arm and told her to wait until the car stopped; that she did not do so, but stepped off while the car was in motion and was thrown to the ground. He was then asked to identify the plaintiff, who was in court. After looking at her he stated that he thought she was the one, but at the time of the accident she looked older; he finally stated that he could not swear positively whether or not she were the woman who got off. Defendant's counsel then produced a paper and asked the witness if it were in his handwriting. He stated that it was and consisted of a report to the defendant of the accident; that he made out the report in the evening following the accident and in it he gave the name of the woman injured. He was then shown the report and after looking at it said it refreshed his recollection and it was the plaintiff who got off. The report was then offered in evidence, to which plaintiff's counsel objected. The objection was overruled, an exception taken, and the report received. This was error. It was, at most, a self-serving declaration of defendant's representative. In this report was a statement that "As car was coming to a stop at 179 St. and 3d Ave., a lady who was standing on rear platform on exit side, suddenly jumped off backwards. I had my hand on her arm but she jumped too forcibly." There was, as already indicated, a conflict in the testimony as to whether or not plaintiff stepped from the car after it had come to a stop. This report bore very strongly upon that issue and may have affected the substantial rights of the plaintiff.
The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.
INGRAHAM, P.J., LAUGHLIN, DOWLING and HOTCHKISS, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.