
    John Norton, Respondent, v. Richard Webber, Appellant.
    
      Impeachment of a witness—objection that his alleged declarations were not called'to his attention—it cannot be first taken on appeal.
    
    The objection that a party is not entitled to introduce independent evidence as-to declarations made by one of the adverse party’s witnesses for the purpose of contradicting his testimony, because on the cross-examination of the witness-his attention was not called to the time and place of the alleged declarations, with sufficient definiteness, is not available for the first time upon appeal.
    Van Brunt, P. J., dissented on the ground-that the damages were excessive.
    Appeal by the defendant, Richard Webber, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of March, 1901, upon, the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 22d day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Thomas P. Wiokes, for the appellant.
    
      Louis Steclder, for the respondent.
   Laughlin, J.:

This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant. On the 3d day of November, 1898, the firm of Naughton & McMahon was engaged in performing a contract with the Third Avenue Railroad Company for the excavation of trenches along either side of the street railway tracks in Third avenue, incident to changing the motive power from cable to electricity. These trenches were between three and four feet in width and about' the same depth. For some blocks above One Hundred and Twenty-third street the trenches had been wholly or partly excavated. In the block between One Hundred and Twenty-second and One Hundred and Twenty-third streets several laborers were at work excavating a trench just outside the outer .rail of the track on the westerly side of the street. One foreman had charge of the work ■in the northerly half of the block and another in the southerly half. Commencing near the northerly crosswalk of One Hundred and Twenty-second street the trench had been excavated the full width but not quite the entire depth, for a distance of forty or fifty feet to the north. Towards the northerly end of this last-mentioned excavation laborers were engaged with picks in loosening the earth at the bottom- of the trench, and towards the southerly end the plaintiff and a fellow-workman were engaged in shoveling the earth thus loosened from the bottom of the trench to the surface of the pavement on the westerly bank of the trench. The plaintiff, while thus engaged and in the act of stooping forward with his face to the south, was caught and pinioned to the ground and elevated railway pillar by the defendant’s two-wheeled butcher cart which was being driven southerly along the south-bound street railway track and came into the trench and upon him.

The appellant contends that the verdict is against the weight of evidence. The cross streets were open for public travel. The objective point of the defendant’s driver was downtown and not any place in the block in question. He testified that he was driving on the westerly side of the avenue, and when he came to One Hundred and Twenty-second street the way was blocked by horses and dirt carts in the employ of the contractors, and that thereupon he turned into thé street railway tracks and drove with the right wheel along the cable slot and the left wheel between the two tracks until he came near One Hundred and Twenty-second street when he was obliged to turn to the right owing to the approach of a vehicle on the north-bound track. He says that this vehicle on attempting to turn to the east, slid along the track and struck his horse’s head, and that thereupon the horse became unmanageable and backed his cart into the trench. In this testimony he is corroborated by other witnesses. On the other hand, there was testimony of eye-witnesses that defendant’s driver had notice of the condition of the street, and of the fact that laborers were at work in this trench which had been excavated up to the westerly rail of the track along which he was driving; that he was driving at a very rapid rate with the wheels of his vehicle traveling in the grooves of the rails where a very slight deviation would precipitate the cart into the trench.

The case was submitted to the jury by a fair and impartial charge by which' they were instructed that if the accident occurred as claimed by the defendant he was not liable.

We have carefully reviewed the evidence and are convinced that it was not only sufficient to require the submission of. the case to the jury both on the proposition of plaintiffs freedom from contributory negligence and defendant’s negligence, but it is also sufficient to sustain the verdict of the jury upon this question.

Only one exception is called to our attention by appellant. The defendant’s driver was arrested by Police Officer McGowan, and was required to appear at the One Hundred and Twenty-first Street Magistrate’s Court. Upon the trial of this action, after- the driver •testified as hereinbefore stated, the record shows further testimony by him on cross-examination in narrative form, as follows : “ I know the policeman, Officer McGowan. I know who he is; I do not remember talking to him about the case. I remember coming out of court one day with him. I do not remember his asking how it happened. I remember the 12Íst Street Court. I don’t know ^whether Mr. Stéckler was in court there. He might have been there and might not. I do not remember one day Mr. McGowan asking me how it happened and my saying to him my wheel slipped into the trench • it did after the horse backed. I do not remember saying that the wheel slipped into the trench or that I was trying to. get across the street and my wheel slipped into the trench. I don’t remember that I said that to him. I don’t know whether I did or not. I will not say I did not say it to him. I won’t swear that I did and I won’t swear that I did not.” Subsequently the policeman testified that he had a conversation with defendant’s driver at the time of his arrest. ■ He was then asked what defendant’s driver said to him and he answered, without objection, “ It is a fact that I had a conversation with him in which- he told me that the wheel went into the trench.” The record then shows that the court asked, •“ Might it not be that it would contradict the driver’s testimony upon the stand as to his version of the accident?” which indicates that some objection, not disclosed by the record, was raised. Plaintiffs counsel thereupon' stated that, the object of the testimony was as indicated by the court, whereupon the court said that the evidence was received for the purpose of contradicting the testimony of the defendant’s driver, but not as an admission or declaration binding on the defendant. Defendant’s counsel thereupon said, I think it is still incompetent because it relates to a collateral matter brought out by my friend on cross-examination, and he is bound by the answer of the witness. I think-it is all incompetent and irrelevant, being long after the accident.” The court again repeated, as already stated, the limited purpose for which the evidence was received. The record then shows, “ Objection overruled; exception taken by defendant’s counsel,” and the witness further testified, “ L asked Stewart how his wagon came to go into the ditch and he; told me he was coming down Third avenue and when down neai122d street he started to cut across the street and get on the other side of the avenue, and the wheel slipped into the ditch. He did not say anything about his horse backing. * * * He never claimed it at any time to my knowledge.”

It is now urged that no foundation was laid for this evidence. It is contended that defendant’s driver’s attention was not drawn with sufficient definiteness .to the time and place when it was claimed lie-made these declarations to the police officer to warrant the admission of independent evidence as to his declarations for the purpose of contradicting his testimony. This position is untenable for the reason that the objection was not taken upon the trial. It will be observed that the objections were that the evidence was incompetent, because relating to collateral 'matter brought out on cross-examination, and that consequently the answers were binding upon the plaintiff, and further that it was incompetent and irrelevant on account of being long after the accident. No objection being raised on the precise ground that a proper foundation had not been laid, the court had a right to assume, in view of the fact that there was some foundation laid, that no question was presented in that regard. Had this objection been taken it could have been promptly obviated by calling the witness. While, strictly speaking, a sufficient foundation was not laid by his testimony, it is quite evident that his attention was sufficiently drawn to what occurred between him and the policeman, so that if the precise time and place had been specified it is not probable that lie-would have admitted having said the accident occurred as claimed by the plaintiff instead of as already testified to by himself. We, therefore, find no prejudicial error in the reception of this, evidence.

It is strenuously urged that the verdict is excessive. The verdict seems large, but it is fairly sustained by the testimony of the plaintiff and his physicians. In view of. the nature of the accident and the manner in which the injuries were received, their testimony is not open to suspicion which would justify this court in either .reducing the verdict or awarding a new trial.

The judgment and order should, therefore, be affirmed, with costs.

Patterson, Ingraham and Hatch, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

. While I think a recovery should be had in this case, it seems to me that the damages are excessive. The plaintiff undoubtedly Avas badly injured, but the sum which was awarded by the jury seems to be exceedingly large in view of what had been his earning, capacity. It is true that for pain and suffering he is entitled to compensation as well as because of disability; yet in considering the whole question it would appear that a larger sum was awarded than the evidence" justified.

Judgment and-order affirmed, with costs.  