
    Flora Mitnick, as Administratrix, etc., of Samuel Mitnick, Deceased, Appellant, v. The Nassau Electric Railroad Company, Respondent.
    Second Department,
    May 26, 1910.
    Witness — cross-examination — scope — making witness one’s own — contradiction — negligence. • •
    Where counsel goes beyond the limits of cross-examination he makes the witness his own as to the matters brought out and cannot later introduce evidence to contradict him.
    Where in an action against a railroad to recover for the death of plaintiff’s intestate who was killed when the defendant’s car in the night time struck the rear of a truck which he was driving, the defendant contends that the truck carried no .rear light and that a lantern found on it in the morning was put there after the accident "and the defendant’s counsel, on cross-examination, questions a ' Witness in relation to the lantern, although nothing on that subject had been brought out on his direct examination, it is error to permit the' defendant to contradict the statements of the Witness on that point.
    Such testimony was not admissible to impeach the witness’ veracity, for it only contradicted his previous testimony and related to an occurrence happening after the accident.
    Appeal by the plaintiff, Flora Mitniclc, as. administratrix, etc., from a judgment of. the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 9th day of February, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of March, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Moses Feltenstein, for the appellant.
    
      D. A. Marsh [George D. Yeomans with him on the brief],, for the respondent.
   Carr, J.:

This is an appeal from a judgment for the defendant, entered upon a verdict of a jury in an action to recover damages for the death of the plaintiff’s husband through the alleged negligence of the defendant. The accident in question happened while the decedent was driving a furniture truck on a foggy night in a sparsely settled part of the borough of Brooklyn. The truck was being driven along the tracks' of the defendant railroad company, and one of its passenger cars came into violent collision with the rear end of the truck. The chief controversy at the trial centered around the disputed question whether the truck had a lighted lantern suspended from its rear axle at the time of the collision. The judgment is attacked as being against the weight of evidence and on the further ground of error on the part of the trial court in the admission of certain evidence offered by the defendant. The case was submitted to the jury by the learned trial court by a charge which clearly set forth the facts at issue and the rules of law to be applied thereto. No exception was taken to the charge. The conflict of testimony as to the facts was sharp and the credibility of the various witnesses was directly involved in a proper ascertainment of the truth, and, under the circumstances of this case, we should be slow to reject the jury’s finding on the facts. There is, however, a serious question of law as to the admission uf evidence, which is not simply technical, as the evidence in question must have played a large part in the jury’s determination of the facts. The plaintiff produced certain witnesses to show that at the time the truck started out in its business on the night of the accident it had a lighted lantern hanging on its rear axle, and other witnesses to show that a short time before the accident the light was still there. The defense produced a number of witnesses, who testified that they came to the scene of the accident immediately after the happening, and looked for and could find no lantern on the truck nor. any evidence of there having been one. The plaintiff produced further evidence that on the morning after the accident a dented lantern was found hanging to the rear axle of the truck, which had been left at the place of the accident over night. It was the evident theory of the defense that some one had come there after the occurrence and deliberately put the lantern where it was found in the morning, in order to manufacture a case either for the plaintiff or for the decedent’s employer, who owned the truck. As to. this, there wais no direct evidence, but it was'sought to show it by inference. ■ Among the.witnesses called by the plaintiff was one Schmidt, who was one of the decedent’s employers.' On his direct examination he testified that he was on -the truck, at the time of the accident and that á lantern had been hung- on its rear axle as it' started out that night. He gave no testimony whatever áa to the lantern said to- have been found on the rear, axle of the truck- on the next morning. . On his cross-examination he was asked if he had not returned with some friends to the scene - of the -accident, some, time thereafter during the night, in a buggy'.which displayed a. lantern, aiid whether on coming, away therefrom he was not.stopped by a police officer who inquired.from him 'as to what he had done with the lantern which had been in the buggy. These questions were, objected to by the plaintiff', as not bindingupon her, but he was permitted, to answer. He was-then asked whether he had not told the policeman that he had left the lantern with - one of his helpers who was then in charge of the injured truck. . This was. likewise objected to and he answered that, lie had not so stated. This line of inquiry' was not cross-examination as to anything -to. which he had testified on the direct. ■ In pursuing it the defendant made- him its own witness'. Later, .the defendant called the -police officer in question, who testified, over objection, tliat; Schitiidt told him that-he had left the lantern in question with his-helper at -the place of the. accident. This helper testified that Schmidt had left no lantern with him. As before stated, this bit of evidence was elicited by the defendant to account for the lantern found on the truck on the next morning, and it was the evident theory of the defendant that the lantern so found was one which Schmidt .had given to the helper some hours after the accident, and which the helper hung on the axle of the truck for the purpose of deception. . ' •

I -think it was clear error to admit the testimony of the police officer,.Metzger, to contradict the denial of Schmidt, when lie was being examined really in behalf of the defendant, thougli'apparently on cross-examination. -Schmidt could not bind the plaintiff by any contradictory declarations made-' under these circumstances. Nor was the-testimony of Metzger, the police officer, admissible, for the purpose of'impeaching the-veracity of Schmidt, as.the respondent contends, for it went only in-contradiction of testimony of Schmidt given as the defendant’s witness, and as to an occurrence happening liburs after the accident which caused the .issue at trial. I think the question 1-iére presented is hot distinguishable from that decided in Kay v. Metropolitan Street R. Co. (163 N. Y. 447.), where a very similar state of facts was presented. I recommend, therefore, that the judgment and order be reversed and a new trial granted, costs to abide the event.'

Jenks, Burr, Thomas and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide event.  