Opinion
March 12, 1909.
Matthew J. Keany [ Dominic B. Griffen and Joseph F. Keany with him on the brief], for the appellant.
John J. Graham [ Charles T. McCarthy with him on the brief], for the respondent.
The plaintiff has recovered a verdict for the negligence of the defendant whereby his motor truck was injured. About 10 P.M. on September 30, 1907, the plaintiff attempted to drive the truck along a public highway, in a country district, where it crossed at right angles the defendant's track, north of and near to defendant's Glenhead station. But the truck broke down on the rails and could not be moved, so that the locomotive engine of defendant's oncoming passenger train struck it.
There was testimony that there was a red light upon the truck at the time of the accident. The learned trial court, under objection, permitted the plaintiff to show by a witness that a few nights before the trial the witness and the plaintiff went to the scene of the accident with the same red light, when the plaintiff stood on the crossing where the accident occurred, held the light "at the height it was * * * on the machine when it was struck," and the witness went down the tracks to see how far he could see it, and that he could see the light for 3,000 feet. The contention of the plaintiff was that the weather conditions of the nights of the accident and the experiment were essentially the same. The plaintiff testified that the night of the accident was dark and cloudy and that the night of the experiment was gloomy. The witness who participated in this test testifies the night was quite stormy, rainy, gloomy and dark. I think that the reception of this evidence was error. ( Yates v. People, 32 N.Y. 511; Bretsch v. Plate, 82 App. Div. 399; Chicago Alton R.R. Co. v. Logue, 47 Ill. App. 292. ) To hold the admission of this testimony reversible error, I go so far as to say that upon the record before us I have grave doubts whether, aside from the element of the red light, there was proof of negligence. But in saying this much I do not express any opinion whether, aside from this objectionable testimony, the plaintiff made out a case upon the circumstance of the red light. In fine, in view of a new trial, which does not require any declaration of the law, for it is familiar, I put this judgment of reversal upon the erroneous ruling discussed.
The judgment and order must be reversed and a new trial be granted, costs to abide the event.
WOODWARD, RICH and MILLER, JJ., concurred; HIRSCHBERG, P.J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.