Martin v. New York & Stamford Railway Co.

230 A.D. 718

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1930
• Status: Published

Opinion

Judgment and order affirmed, with costs. We affirm because (a) of the form of the questions; (b) the inquiry reached into a collateral field which would evoke testimony as to what different parts of the car others were in, whether or not they had hold of stanchions or were set for a jar, whether they were seated or standing, whether they had knowledge of the curve and its possible effect, etc., thus placing the inquiry in the realm of collateral matters, the range of which is properly governed by the trial court’s discretion; (c) the ruling was not prejudicial, in view of the other testimony in the case, especially since plaintiff has had a verdict on two trials upon substantially the same evidence; (d) of section 106 of the Civil Practice Act, which requires the disregard of error where it does not affect substantial justice. Lazansky, P. J., Rich, Young and Carswell, JJ., concur; Hagarty, J., dissents and votes for reversal and a new trial, with the following memorandum: I am of opinion that, under the defendant’s theory in this case, the court erred in refusing to admit testimony of the effect of the lurch of the car upon other passengers. The court limited the testimony, ruling that the question was “ What was the speed and what did it do to this man, not what it did to somebody else.” Counsel for the defendant then asked, “ Does not your Honor think that the action of the car in going around this curve, the result of that action on other passengers in the ear would have some effect? ” To this the court replied, “ I do not think so. I will give you an exception to my ruling.” (Folios 137-139.) This was erroneous. (Sheeron v. Coney Island & Brooklyn R. R. Co., 78 App. Div. 476.)