Jankowski v. Borden's Condensed Milk Co.

Appellate Division of the Supreme Court of New York

Jankowski v. Borden's Condensed Milk Co.

176 A.D. 453, 162 N.Y.S. 778, 1917 N.Y. App. Div. LEXIS 9357

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 12, 1917

StatusPublished

Cited by3 cases

This text of 176 A.D. 453 (Jankowski v. Borden's Condensed Milk Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jankowski v. Borden's Condensed Milk Co., 176 A.D. 453, 162 N.Y.S. 778, 1917 N.Y. App. Div. LEXIS 9357 (N.Y. Ct. App. 1917).

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Opinions

Per Curiam:

In this action to recover for injury to property received in collision with appellant’s wagon, the following evidence was received upon the direct examination of the plaintiff: “ Q. Did you have any conversation with the driver of the Borden’s milk wagon ?” and answered, “Yes, sir. * * * Q. When did you have this talk with Borden’s man ? A. Right after he killed the horse. Q. How long after the shaft struck the horse, was it ? A. Right away. Q. Can you say about how many minutes ? A. In about three or four. Q. Three or four minutes ? A. Yes. Q. As soon as you got off the wagon he [454]*454got off ? A. Yes, sir. * * * Q. What did he say to you ? A. He said that it was his fault. * * * Q. Is that all he said ? A. That is all he said. That is all I spoke to him about.” Later the witness was cross-examined as to his actions after the accident, whereby it appears that his horse had fallen; that he devoted himself to helping the horse to his feet; that his sole attention was taken with that; that he sent a stableman to telephone for a doctor. He testified: “Q. And the first man you talked to was this stableman you sent to telephone ? A. Yes, sir.” It thus appears that if, as plaintiff testified, he had a conversation with the driver, it must have been at some interval after the accident. The words said to have been used by the driver were not exclamatory, but in confession; not accompanying the act, but spoken in a subsequent conversation; not an outcry qualifying the thing done, but in explanation and in accountability. The testimony is condemned by Sherman v. D., L. & W. R. R. Co. (106 N. Y. 542), and the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Jenks, P. J., Thomas and Stapleton, JJ., concurred; Putnam, J., read for affirmance, with whom Carr, J., concurred.

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Per Curiam:

In this action to recover for injury to property received in collision with appellant’s wagon, the following evidence was received upon the direct examination of the plaintiff: “ Q. Did you have any conversation with the driver of the Borden’s milk wagon ?” and answered, “Yes, sir. * * * Q. When did you have this talk with Borden’s man ? A. Right after he killed the horse. Q. How long after the shaft struck the horse, was it ? A. Right away. Q. Can you say about how many minutes ? A. In about three or four. Q. Three or four minutes ? A. Yes. Q. As soon as you got off the wagon he [454]*454got off ? A. Yes, sir. * * * Q. What did he say to you ? A. He said that it was his fault. * * * Q. Is that all he said ? A. That is all he said. That is all I spoke to him about.” Later the witness was cross-examined as to his actions after the accident, whereby it appears that his horse had fallen; that he devoted himself to helping the horse to his feet; that his sole attention was taken with that; that he sent a stableman to telephone for a doctor. He testified: “Q. And the first man you talked to was this stableman you sent to telephone ? A. Yes, sir.” It thus appears that if, as plaintiff testified, he had a conversation with the driver, it must have been at some interval after the accident. The words said to have been used by the driver were not exclamatory, but in confession; not accompanying the act, but spoken in a subsequent conversation; not an outcry qualifying the thing done, but in explanation and in accountability. The testimony is condemned by Sherman v. D., L. & W. R. R. Co. (106 N. Y. 542), and the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Jenks, P. J., Thomas and Stapleton, JJ., concurred; Putnam, J., read for affirmance, with whom Carr, J., concurred.

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Bluebook (online)

176 A.D. 453, 162 N.Y.S. 778, 1917 N.Y. App. Div. LEXIS 9357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jankowski-v-bordens-condensed-milk-co-nyappdiv-1917.

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