The evidence as to the circumstances attending the happening of the injury which the jury has found caused the death of plaintiff’s intestate was practically the same as that given upon the former trial of this action, and stated in the opinion of Justice Kellogg, reported in 147 Appellate Division, 462, except that it is claimed by the defendant that it now appears that the ladder was not ordinarily used as a means of ascending and descending to and from the girder of the crane. *441Upon the present trial, however, objection was duly made and exception taken by defendant to the question asked of plaintiff’s witness Carlsen, who stood some ten or twelve feet from the place where the injured man was lying, and who hastened to him immediately after the fall, as to what had happened, to which plaintiff’s intestate answered: “My feet is broke; the ladder bent over.” While the question as to the admissibility of this evidence may he regarded as a close one (People v. Del Vermo, 192 N. Y. 470, 483; Scheir v. Quirin, 77 App. Div. 624), yet I think that within the holding in the cases of Waldele v. N. Y. C. & H. R. R. R. Co. (95 N. Y. 274) and Martin v. N. Y., N. H. & H. R. R. Co. (103 id. 626) the admission of the testimony constituted reversible error.
The declaration of plaintiff’s intestate was not in its nature spontaneous, within the rule admitting exclamations of that character. It was directly declaratory of the claim of plaintiff upon the trial that the defendant was negligent in having furnished a ladder of too light construction and not properly stayed to bear decedent’s weight, and hence that it bent over, throwing him to the pavement below. It was in effect a statement that the falling was not accidental, nor due to the negligence of plaintiff’s intestate, but that it was due to an occurrence upon which might be predicated negligence upon the part of the defendant. The vital question in the case was what caused decedent to fall.
The judgment and order appealed from should he reversed and a new trial granted, with costs to appellant to abide the event.
Houghton, J., concurred.
Judgment and order affirmed, with costs.