Menkelunas v. City of New York

270 A.D. 827, 60 N.Y.S.2d 97, 1946 N.Y. App. Div. LEXIS 4133

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1946
• Status: Published

Opinion

Action to recover damages for the wrongful death of plaintiff’s intestate. Judgment dismissing the complaint at the close of the plaintiff’s case unanimously affirmed, with costs. The fragment of testimony given by police officer Evers to the effect that defendant’s motorman had told him that the decedent had come from the motorman’s left and gone over to the right when the accident happened did not establish as a substantive fact that the decedent had, in fact, crossed from the left to the right, that is, across the path of the trolley car. Such testimony, even if it were admissible (Civ. Prac. Act, § 343-a), was only available in respect óf the motorman’s credibility. The negligence of the defendant could not be established by a declaration of the motorman made after the event. {Kay V. Metropolitan Street By. Co., 163 N. Y. 447; Burns v. Borden’s Condensed Milk Co., 93 App. Div. 566; Moore v. Bosenmond, 238 N. Y. 356, 361.) This results in the motorman’s testimony being the only proof in this record of the happening of the incident. Assuming that a jury would be free to reject portions of that testimony, there is no other proof to take the place of such testimony as might be so rejected. The only substantive proof in this record is that plaintiff’s decedent never was in the path of the trolley car. There is no proof that the front of the trolley car ever came in contact with plaintiff’s decedent. The state of the proof is such that it would be sheer speculation for a jury to assume to determine on this record that the defendant was the negligent cause of decedent’s death. Present — Lewis, P. J., Hagarty, Carswell, Adel and Nolan, JJ.