« AnteriorContinuar »
latter point a person looking on the track toward S. could see only about 300 feet; that prior to reaching the obstructions the track was visible to the canal bridge, which was about half a mile from the crossing, but the carriage was very near the crossing when the train crossed the bridge; that the train came along with a quiet movement, and there was a slight breeze from the west.
It appeared that the whistle was not blown until the train was at or quite near the crossing, and the evidence as to whether the bell was rung was conflicting. A motion for non-suit was denied.
W. G. Tracy, for applt. Louis Marshall, for respt.
Held, No error. The questions of negligence and contributory negligence were for the jury to pass upon. See 79 N. Y., 72; id., 464; 88 id., 42. The evidence of M. would authorize the inference that had deceased looked and listened as he says he did she would not have seen or heard anything. Looking at the evidence in the light most favorable to plaintiff we cannot say, as a matter of law, that deceased was careless or that the verdict in plaintiff's favor on that subject is against evidence.
Much of the evidence given was read from the minutes of the trial of the case of M. against this defendant under a stipulation whereby it was agreed that either party might read from the stenographer's minutes in that action "the testimony of any and all witnesses who testified upon said trial, either party reserving the privilege of
recalling and swearing any of said witnesses and to produce and examine additional witnesses." The trial court held that no objec tions could be taken to testimony read under the stipulation that were not taken on the trial; that photographs proved by the evidence of a witness that was read and offered in evidence at the former trial were admissible; that plaintiff could omit to read the entire evidence of a witness for plaintiff on the former trial, and that plaintiff having read the direct-examination of a witness could also read the cross-examination as defendant did not read it.
Held, No error. The stipulation was absolute that either party might read the testimony of any witness. There was no reservation of any right to further object or to strike out. The actions were about the same accident, and the stipulation assumes that the testimony as given in one case was material in the other and that the record was in proper form. The right to recall the witnesses and produce others was reserved. If any right to change the record was desired it should have been so stated. It was not made obligatory upon either party to call any particular witness or to call all. Neither party was limited to the direct or to the cross-examination. The entire testimony of any witness could be read by either party. The photographs that were received in evidence were made and verified by the witness whose evidence was read, and were substantially a part of his evidence
A witness was allowed to testify that on the day in question the train was going faster than she ever saw it, and another witness that it was running just the same way every day, as fast as the train would go.
and were in fact produced and contradicted. Whart. Ev., § 561; were competent. 83 N. Y., 464. 41 N. Y., 6. Defendant's motion to strike out this evidence was properly overruled, no ground being stated for the motion. The offer to show that the evidence of the witness before the coroner meth was the same as at the trial was not an offer to show that the witness before making the impeaching statements had testified the same as at the trial.
The court was asked to charge that the deceased and M. were engaged in a common enterprise, and that his negligence was her negligence. and refused to do so.
Held, No error. 66 N. Y., 11; 71 id., 228; 84 id., 247; 24 Hun, 101. There is There is nothing to show M. was not a competent
Held, That in view of the fact that the engineer of the train, called as a witness for defendant, testified that on the day of the accident he was running the train just as fast as he could, no such error was made in the admission of the evidence as would call for reversal.
The statement of a witness that at the time of the accident there was no gate across the highway was admitted as descriptive of the situation at the time, and for no other purpose. Held, That this was proper. 92 N. Y., 219.
A witness for defendant was asked upon cross-examination whether, in reference to his being a witness, he had said at a certain time and place that he proposed to wait and see where he could make the most, or whether at a certain other time and place he had sent word to M. that when this case came up he would be absent from the trial for an inducement. He denied these statements, and plaintiff was allowed to prove them under objection.
Held, That this evidence was admissible under the general rule that a witness' answers as to motives in regard to the particular transaction in controversy may be
Callahan v. Sharp, 27 Hun, 85, does not apply.
The court was requested by defendant to charge that if when within 30 feet of the crossing plaintiff's intestate, had she looked or listened, could have discovered the train 350 or 400 feet away, and she omitted to discover such train and endeavor to stop the team by warning the driver or in some other manner, then she was guilty of contributory negligence and plaintiff could not recover. This the court charged, with the addition that it was her duty to look in both directions, and if she could, by the exercise of the care which an ordinary person would exercise under like circumstances, have discovered it and failed to exercise it then plaintiff could not recover.
Held, That the modification was
court had previously charged fully on the subject in the form then requested by defendant.
substantially correct. Besides the | riding with her husband and two other ladies. She left no children or father or brothers and sisters. but left a mother. While plaintiff was upon the stand he was asked, "Has your wife's mother any means or property?" This was objected to generally, the objec tion overruled and the answer was "No."
The court was also asked to
Held, No error. 71 N. Y., 285.
N.Y. SUPREME COURT. GENERAL
Joseph D. Malonee, admr.,respt.,tributed by plaintiff "as if they v. The N. Y. C. & H. R. RR. Co., applt.
were unbequeathed assets left in
Decided Oct., 1884.
In an action by a husband, as administrator, to recover damages for the death of his wife, in a case where she left no survivors but himself and her mother, evidence as to the means or property of the mother is ir relevant and inadmissible.
The erroneous admission of such evidence is not cured by a charge to the jury to assess such damages as would pay plaintiff for his actual pecuniary loss, without instruct ing the jury to disregard such evidence.
Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
W. G. Tracy, for applt.
1903, Code Civ. Pro., the dam-
Action to recover damages for the death of plaintiff's intestate caused as alleged by the negligence of defendant. The deceased, who was the wife of plaintiff, was killed by a collision with a passing train of defendant while she was
and the action was not for her benefit. The evidence as to her means or property would therefore seem to be entirely irrelevant and therefore improperly admitted.
The judge charged the jury to assess such damages as would pay plaintiff for his actual pecuniary loss, and declined to charge upon request of plaintiff that the recovery should be in favor of plaintiff and next of kin. There was no direction to disregard the evidence as to the mother's means.
Held, That the error in admitting the evidence was not cured by the charge. In substance this limited the recovery to the pecuniary injuries resulting to plaintiff. Still the evidence as to the pecuniary situation of the mother was left in the case and there was no direction to disregard it, so that the jury when they came to fix the amount of damages had the right to think that this evidence was material and to be borne in mind by them in determining the pecuniary injury to the husband. In the charge, it is said, the pecuniary loss of plaintiff in this case is confined almost exclusively to the services of the wife. That does not take from the jury the idea that in determining as to such services they may consider the pecuniary situation of the mother. See 55 N. Y., 579; 14 W. Dig., 58.
Also held, That the objection taken was available. A general objection is sufficient if the evidence in its essential nature is incompetent, or if the ground though stated could not have been obviated. 70 N. Y., 34.
Judgment and order reversed, and new trial granted, costs to abide event.
Opinion by Merwin, J.: Hardin, P. J., and Follett, J., concur.
NEGLIGENCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.
Elizabeth M. Chapman, applt., v. The Village of Silver Creek, respt.
Decided Oct., 1884.
Where snow eight inches deep had lain on the walk two weeks, and then thawed and froze again, and the ice thus resulting continued nearly a week, and plaintiff slipped on it at night and was hurt, Held, That the jury were warranted in finding the village authorities chargeable with notice, and negligent.
Appeal from County Court order granting new trial.
Defendant was re incorporated under the general act of 1870. Plaintiff sued for damages resulting from a fall caused by defendant's alleged negligence, and she recovered a verdict. The place of the accident was in a remote part of the village. A plank sidewalk had been built there, when and by whom does not appear. The evidence justified the conclusion that for two weeks prior to December 12th there had been snow on the walk eight to ten inches deep; that on December 12th the snow thawed, and was that night so frozen as to make ice on the walk four to six inches thick in the centre, and sloping down to the edges of the walk, and that it so
remained till the evening of December 18th, when the accident occurred, it being then so dark that plaintiff could see but a few feet from her, and that she had no previous knowledge of the condition of the walk.
George E. Towne, for applt.
Held, That the trustees of defendant were bound to keep the walk in reasonable repair and condition. 50 N. Y., 236; 51 id., 506, 513; 3 Hun, 508; 75 N. Y., 45; 44 Barb., 385; 61 N. Y., 506; 69 id., 166; 28 Hun, 110; 13 W. Dig., 551; 49 Barb., 580. It was not important who made the walk. 94 N. Y., 27.
The jury were warranted in finding defendant chargeable with notice, and the verdict was not erroneous. 45 N. Y., 129; 46 id., 194; 61 id., 506; 43 How. Pr., 366; 76 N. Y., 329.
Opinion by Bradley, J.; Smith, P. J., Barker and Haight, JJ.,
N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.
Henry Nugent, respt., v. Eli B. Jacobs, impld., applt.
Decided Oct., 1884.
Where the evidence warranted the finding that the grantee took the deed not merely to cancel the grantor's debt to him, but also to delay other creditors, Held, No error to declare the deed fraudulent, and that the deed cannot be treated as security for the debt due the grantee, or for the purchase money advanced by the latter as
against a creditor who obtained judgment shortly after the deed was made. Appeal from judgment on Special Term decision.
Action to set aside a deed as fraudulent against creditors. Plaintiff is a judgment creditor of G., who made the deed to defendant two days before plaintiff's judgment. The deed was given subject to two mortgages, and the grantee paid G. the difference between the purchase price and the united amount of the mortgages and G.'s debt to defendant. There had been some indefinite talk of a sale between defendant and G. before, and a few days before the deed was made G. asked defendant what he would give for the land, and declined the offer then made. Next day G. told defendant plaintiff had sued him and would soon take judgment. On the day the deed was given G. accepted defendant's offer and delivered the deed, which was at once recorded. G. testified that he told defendant that he would have to do something before plaintiff got judgment, and he stated his purpose to make an assignment, and agreed to prefer defendant's debt. But defendant advised him to sell instead, and offered, if he would sell to him, to let him stay and work the premises five years, and said he would deed it back any time G. wanted to redeem it. G.'s wife testified to the same facts. Defendant denied that anything was said about an assignment or about his deeding back, and he testified to the good faith of the transaction, and contradicted G.'s evi