Donohue v. Brooklyn, Queens County & Suburban Railroad

53 A.D. 348, 65 N.Y.S. 634, 1900 N.Y. App. Div. LEXIS 1929

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 1, 1900
• Status: Published

Opinion

■Jsuits, J.:

The action is brought to recover damages resulting from the negligence of the defendant. The plaintiff recovered $1,136 for bodily injuries and for “ injuries to her head and limbs.” She ■called her sister as a witness. The record shows that counsel for plaintiff put this question : “ Has your sister continued to complain ■of pains in her head ever since the accident up to the present day ? [Objected to. Objection overruled. Defendant excepts.] A. Yes, ■sir.” The question was plainly objectionable, for it called for •declarations of a party made subsequent to the injury. (Roche v. Brooklyn City & Newtowm R. R. Co., 105 N. Y. 294; Reed v. N. Y. Central R. R. Co., 45 id. 574; Olp v. Gardner, 48 Hun, 169 ; Ryan v. Porter Manufacturing Co., 57 id. 253.) There is no force in the respondent’s contention that the general objection was insufficient, for if it had been taken or had been recast in specific terms, there was no way in which the question could have been made admissible. (Tozer v. N. Y. C. &. H. R. R. R. Co., 105 N. Y. 659 ; Silberstein v. Houston R. R. Co., 117 id. 293; Tooley v. Bacon, 70 id. 34.)

The claim for damages was largely based upon pains in the head ■and upon mental distress. After the plaintiff none was called as a witness save the sister and the attending physician, whose visits were few. It cannot be assumed that the evidence admitted was harmless.

The judgment and order should be reversed and a new trial granted.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.