Whittaker v. Eighth Avenue Railroad

5 Rob. 650

• Court: The Superior Court of New York City
• Decided: July 1, 1867
• Status: Published

Opinion

By the Court, Barbour, J.

Upon the trial of this action, which was brought to recover damages for injuries to the person, caused by the willful and improper- conduct of the defendants’ servant, the plaintiff was allowed to amend his complaint, so as to make it conform, in letter, to the requirements of the act of 1824, (21 R. S. 966,) authorizing recoveries to be had against the owners of carriages running upon any 'public highway, by adding the word “public” before “highway.”

The defendants’ exception to this is untenable. As the court was bound to take judicial notice of the fact that the Eighth avenue, in the city of New York, was a public highway, and the complaint already averred that the injury was done there, such amendment was wholly, unnecessary. Even if that had been otherwise, however, the allowance or rejection of the amendment was entirely discretionary as the case then stood.

The appellants also object that the statements made by the driver immediately after the occurrence of the injury, were improperly admitted in evidence. 'Although I find no exception to such admission, it. may be proper to say that any expression of the driver, either before, during, or immediately after, and in the heat of the occurrence, showing his then design to do an injury, and not a declaration predicated upon an after-thought, was admissible.

There being no other exception of note, except that of the right to recover at. all, the exceptions should be overruled, and judgment entered for the plaintiff. The case made by the pleadings and proofs, is clearly within the letter, as well as spirit of the act.