
    Martin, General Guardian, etc., v. New York, New Haven and Hartford Railroad Company.
    
      (Court of Appeals,
    
    
      Filed December 17, 1886.)
    
    1. Evidence—Declarations or deceased as to injury received, not tioMPETENT.
    In an action brought to recover damages for the death of plaintiff’s father alleged to have been caused by the negligence of defendant, the declarations of the deceased after the accident as to how it happened were introduced in evidence and received against defendant’s objection and exception. Held, that the evidence was inadmissible in favor of the plaintiff, and that tending to sustain a vital point in plaintiff’s case the erroneous admission thereof furnished ground for a new trial.
    2. Evidence admitted against objection—Party objecting may disprove WITHOUT WAIVING OBJECTION.
    
      Held, that the defendant did not waive his objection and exception by attempting to disprove the matter testified to, or to prove facts inconsistent with it. ■ That a party excepting to the admission of testimony .is not bound to, concede its truth, or to refrain from combating it, in order to retain the execution.
    
      Appeal from a judgment of supreme court, general term, first department, affirming a judgment in favor of the plaintiff, and affirming an order denying a motion for a new trial.
    The action was brought by plaintiff to recover damages from defendant for the killing of plaintiff’s father caused by the negligence of defendants. Testimony was admitted at the trial showing the statements made by the father, after the injury was-received, and while being carried from where the accident occurred, as to the manner in which it happened.
    
      Thomas P. Wickes, for resp’t; Frank Loomis, for app’lt.
   Rapallo, J.

The decision of this appeal is controlled by the case of Waldele, adm’x, v. The New York Central and Hudson River Railroad Co. (95 N. Y. 274); in which it was held after much discussion, that the declarations of a person who had been fatally injured upon-a railroad, made after he had sustained the injuries, explaining the manner in which the accident had happened, were not competent evidence in favor of his administratrix, in an action brought by her against the railroad company for causing his death by negligence.

The plaintiff was allowed to prove in the present case, under objection and exception, that after the deceased had been taken out from under the car by which he had been injured, and while he was being conveyed to .the switch-house by his fellow employees, some one asked him how the accident had happened, and he said: “I pulled.the pin and made a grab for the" car, and there was nothing there for me to grab.” Another version given by the witness was that deceased said he cut off the car and made a grab for the handle of the car, and there was nothing there for him.

The deceased was ah employee of the defendant, and the sole ground upon which the plaintiff’s claim to recover was founded was that the car which he was directed to detach from the train was not furnished with a horizontal grab-handle on its end, and that that alleged defect was the cause of the injury. The testimony thus erroneously admitted, therefore, tended to sustain the vital point of the plaintiff’s case.

The learned counsel for the respondent seeks to avoid the effect of the erroneous admission of this testimony by claiming that it did no harm, but we think that position cannot oe maintained. Whether the car on which the deceased attempted to climb, after he had cut it off, was or was not furnished with a grab-handle, and whether or not he met his death in the manner in which the witness testified that he said he did, were contested questions of fact which were submitted to the jury, and the evidence of his declaration very soon after the accident must have had weight with them in determining those questions.

It is further contended that the defendant is precluded from insisting upon this exception, by having itself inquired into the declarations of the deceased on the occasion referred to.

One witness testified that he attributed the blame to one of his fellow workmen; and another, that when asked how he came to fall, he answered that he did not know. All this testimony was taken after the declaration of the deceased, while being taken to the switch-house, had been admitted, notwithstanding the defendant’s objection and exception, and was introduced by way of contradiction of the witness Malone, who had given the objectionable testimony. The defendant did not waive his objection and exception by attempting to disprove the matter testified to, or to prove facts inconsistent with them. A party excepting to the admission of testimony is not bound to concede its truth, or to refrain from combating it, in order to retain his exception.

There are numerous other exceptions in the case worthy of attention, but as they may not arise on another trial, it is needless to pass upon them now.

For the error pointed out the judgment should be reversed and a new trial ordered, costs to abide the event.

All concur, except Daneorth, J., not voting.  