Zuckerman v. New York City Railway Co.

Per Curiam :

In this action for damages resulting from the death of plaintiff’s ’ intestate, the principal question of fact was whether the deceased had come to his death by leaving the car while it was running at full speed, or whether he had been thrown to the ground by the negligent starting of the car while he was alighting. An important witness for the plaintiff was one Hetsch, who professed to have seen the accident. Upon cross-examination he was asked whether he had not made, certain statements both at the coroner’s inquest and to certain policemen. He denied that he had made the statements con eerning which he was interrogated. Upon his redirect examination, under the objection and exception of the defendant, the witness was .permitted to testify as to what he did say to the policeman some time after the accident happened. This was clearly error, for nothing is better settled than that the evidence of a witness upon the trial cannot be corroborated by proof of statements previously made by him. (Dechert v. Municipal Electric Light Co., 39 App. Div. 490, 496.) The questions put to the witness on cross-examination did not open the door to the introduction of the objectionable evidence, for the witness denied having made the contradictory statements concerning which he was then asked. There was, therefore, no room for the application of the rule that a witness who has been required to give a part of a statement or conversation, may be permitted to give the whole thereof. (Sexton v. Onward Construction Co., 93 App. Div. 144.) In view of the weight undoubtedly given by the jury to the testimony of this witness, and the general character of his evidence, we cannot say that his self-corroboration did. not influence the verdict.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.-

Present — Patterson, P. J., McLaughlin, Houghton, Scott and Lambert, JJ.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed.