Schoenfeld v. Long Island Rail Road

277 A.D.2d 780

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1950
• Status: Published

Opinion

In an action to recover damages for the wrongful death of decedent as the result of a collision between decedent’s automobile and defendant’s train, judgment, entered on the verdict of a jury in favor of plaintiff, reversed on the law and a new trial granted, with costs to appellant to abide the event. It was error for the court to permit plaintiff’s witness Barry to testify to a statement made by defendant’s fireman Wicks, after the accident, that when the train was a “ couple of ear lengths from the crossing ”, he noticed “the rays from a car’s headlights ”, and to a statement made by defendant’s engineer Sephton, after the accident, that he did not see the watchman on approaching the crossing where the accident happened. These statements were not spontaneous, but were narratives of what had occurred. (Greener v. General Elec. Co., 209 N. T. 135.) Nolan, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.