I dissent from the decision about to be made, on the ground that the evidence for the admission of which the judgment is sought to be reversed was relevant and competent and, therefore, admissible. One of the principal questions in issue was whether the bell on the locomotive which struck the plaintiff's intestate was at the approach to the crossing ringing or not. Produced as a witness for the defendant the engineer, on his direct examination, testified that the bell was ringing at the time. On cross-examination he stated that the bell was an automatic bell; that he started it ringing immediately after leaving Rochester Junction (some distance from the scene of the accident), and that he did not do anything with it till after the accident. He gave this further testimony: "That is my practice and that is my recollection of it. There was no reason that night why I should have thought about the bell ringing any more than any other night before the accident happened. I am prepared to testify that for the year preceding that, as long as I had that run, that on every night, excepting stops at the Rochester Junction and other places from Buffalo to Sayre, my bell was ringing automatically from Buffalo to Sayre whenever I had that engine; I had that engine most always." The fair inference from this testimony, or at least an inference which the jury might have drawn, was that the witness's statement that the bell was ringing was wholly based on his knowledge of or belief in the fact that the bell was an automatic bell, that he had set it ringing at Rochester Junction and had not touched it till after the accident. The facts thus elicited were not at all collateral. They were vital to the issue of whether the bell was ringing or not at the time of the accident. This was not an inquiry into new matters, but into his knowledge of the fact to which he had testified, and its effect was, or at least the jury might have so found, to limit his testimony, which on its face was an assertion of a fact of which he was *Page 386 conscious through his senses, to merely his inference or conclusion from other facts which he knew, to wit, starting the bell ringing at Rochester Junction and that it was not subsequently changed. The plaintiff necessarily had the right to contradict the modified statement made by the witness, as fully as he had to contradict the broad statement made by the witness in the first instance, and the fact that he compelled the witness on cross-examination to modify his statement in no degree impaired the right to contradict it. Therefore, testimony which proved that the bell was not ringing at a place beyond that at which the witness testified he set it ringing, seems to me clearly contradictory of the witness's testimony that the bell was ringing at the time of the accident. I think the case falls exactly within the principle of Pontius v. People (82 N.Y. 339). In that case the defendant was indicted for assault with intent to kill. To show motive the People proved that the defendant had in his possession a number of promissory notes of the person assaulted, which it was claimed were forgeries. The defendant testified that the notes were genuine and that he had lent the maker or indorser the moneys represented by the notes. It was held competent for the People to interrogate him as to his means and the source from which he obtained the moneys and then to contradict by other witnesses his statements as to those matters. Judge DANFORTH there said: "It was relevant to inquire upon cross-examination as to this money, where it was procured by him, at what place kept, from whence taken to make the loan; and it was also relevant and pertinent to give in evidence any fact which would tend to show the improbability of his narrative." An examination of the record on appeal will show that the evidence here referred to was the testimony of witnesses other than the defendant, given to contradict his statement on cross-examination. It is idle to argue that the appellant's counsel sought to limit the inquiry to the operation of the bell at the exact place of the accident, when he put on the stand a witness whose cross-examination he knew, from the previous trial, would reveal the fact that the witness was testifying *Page 387 to a conclusion from facts and circumstances prior to the accident.
I can see no purpose for which the photograph of the deceased was competent evidence. There was no dispute as to her age, her health or physical condition. But it seems to me the error is of too little moment to justify a reversal of the judgment. Almost every day of the term we affirm judgments in cases which present far more serious error.
The judgment should be affirmed, with costs.
GRAY, BARTLETT, HAIGHT, JJ. (and VANN, J., on last ground of opinion only), concur with PARKER, Ch. J.; CULLEN, J., reads dissenting opinion; WERNER, J., not voting.
Judgment reversed, etc.