
    Edward D. Harkins, Respondent, v. Queen Insurance Company of America, Appellant.
    
      Negligence — injury from the fall of an elevator' conversations subsequent thereto between the injured elevator man and another employee of the master are incompetent,, as is also proof as to several falls of the elevator —■ when errors are not cured' by a direction to the jury to disregard the evidence improperly admitted.
    
    In an action brought to recover damages for personal injuries sustained by -the plaintiff, an elevator man in the employ of the defendant, in consequence of the fall of the elevator, it is improper to permit the plaintiff, oyer the defendant’s objection, to testify to a conversation which took place subsequent t.o the fall of the elevator between himself and an engineer in the employ of the" defendant, who had charge of the elevator engine, in which conversation the . engineer intimated that the pilot motor of the elevator was defective.
    
      Qumre, whether the error involved in the admission of the conversation was cured by the action of the court in directing the jury to disregard it, where he coupled such direction with the statement that he was inclined to think that evidence of the conversation was competent.
    Where the plaintiff, who claimed in his complaint that his injuries were the result of the fall of the elevator on a day specified and thereafter on divers dates, was permitted, on the trial, to give evidence as to each of several falls of the elevator and as to the condition of the elevator at the time each of the falls occurred, and at the close of the trial the court dismisses the complaint as to all but the first fall, and instructs the jury to disregard all the evidence except that pertinent to the first fall, such instruction does not operate to obviate the damage inflicted upon the defendant by the reception of the testimony thus stricken out, and a judgment entered upon a verdict in favor of the plaintiff will be reversed.
    Appeal by the defendant, the Queen Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30tli day of November, 1903, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 28th day of November, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edwin A. Jones [,Joseph Larocque, Jr., with him on the brief], for the appellant.
    
      Frederick F. Neuman [David Welch with him on the brief], for the respondent.
   Willard Bartlett, J.:

The plaintiff was employed by the defendant to operate an elevator. On the day when he began work in the defendant’s elevator at the Queen building in the borough of Manhattan, the car fell a distance of several stories to the ground floor, inflicting the injuries for which a recovery is sought in this action. After narrating the circumstances of the accident the plaintiff, over objection and exception in behalf of the defendant, was permitted to testify to a conversation with one Patrick Fitzgerald, an engineer in the service of the defendant, who had charge of the engines by which the elevator was operated. The interview took place shortly after the fall of the elevator, when the plaintiff began to experience pain and dizziness and numbness in consequence of the accident. His statement, of the interview was as follows: I entered the engine room and I says, Paddy, I understand that, the elevator is all right; is that so ? ’ He said, Yes, I patched it up for to-day, but I will see Jim. McKay and I will have him get a new pilot motor; that is the only way out of it; it has to be done first or last, and we might as well do it.’ ”

After this testimony had been given the defendant moved to> 'strike it out as incompetent, irrelevant and immaterial and as not binding on the defendant, no authority having been shown on the part of Fitzgerald to make any such statement. The motion was-denied and the defendant duly excepted.

It is perfectly clear that this evidence was inadmissible. The only purpose in offering it must have been to prove an admission by the defendant’s engineer, binding upon the defendant; to the effect: that the fall of the elevator car occurred as the plaintiff contended, that it occurred, by reason of ,a defect in the pilot' motor. The defendant corporation was not legally chargeable with any liability . on account of such admission by its engineer, and I think there can be no doubt that if there was nothing further in the record on this, subject the judgment and order would have to be reversed on account of the error of the trial court in receiving this testimony,, wdnch was certainly most damaging to the defendant in character and effect.

It is argued in behalf of the respondent, however, that the error was cured by the subsequent action of the learned judge who presided upon the trial in striking out the evidence which has been quoted and instructing the jury to disregard it, and in support of-this proposition we are referred to the opinion .of Earl, J., in Chesebrough v. Conover (140 N. Y. 382, 389), in which the case under consideration was likened to a case where upon the trial of an action the trial judge erroneously received objectionable and damaging evidence which he subsequently strikes out and directs the jury to disregard. “ In such cases,” said Judge Earl, we have uniformly held that the vice is eliminated and that theoretically, at least, the erroneous evidence found no lodgment ii.. the minds of the jury.”

The rule thus invoked would probably compel us to regard this error as having been cured, if it stood alone in the record, although the learned trial judge accompanied liis direction to the jury with a qualifying statement which must have given the jurors to understand that in his opinion the evidence was competent and proper for their consideration, notwithstanding his formal instruction that they should disregard it. I quote that portion of the record which relates to this matter : “Mr. Jones: I move to strike out all of the testimony admitted showing any conversation with Fitzgerald with reference to anything that occurred in the building. The Court: It is the same motion which you made yesterday and which I -denied at that time? Mr. Jones: Yes, sir. The Court: In reference to conversation between Fitzgerald and the plaintiff? Mr. Welch: Yes, I will consent to that. I not only consent to' that, but I especially ask your Honor to charge the jury or make the statement now that they shall entirely disregard it. The Court: I think I had better strike that out, while I am inclined to think that it is competent. Gentlemen of the jury, the testimony given by the plaintiff as to all conversations testified to by the plaintiff between him and Fitzgerald, I instruct you to disregard. Mr. Jones : Just as though they never had heard it? The Court: Just the same as if you had never heard it.”

The statement of the judge that he was- inclined to think the testimony of the plaintiff as to his conversation with the engineer was competent, although he thought he had better strike it out, operated largely to nullify his formal act in granting the motion •and instructing the jury to disregard such testimony. It was very much as though he had said to the jury : “ It is really my opinion - as-a lawyer that this evidence is properly received and ought to be ■considered in passing upon the question of the defendant’s liability, but notwithstanding that opinion, in order to avoid’what may be ■deemed a fatal error by an appellate court, I tell you to pay no attention to this part of the proof in arriving at your verdict.” It •seems to me that a statement of this nature deprives the formal ¡action of the trial judge of the effective character which might otherwise be assigned to it under the authority of Chesebrough v. Conover {supra) and similar cases. It is idle to tell juries, as the jury was substantially told in this case, that they are to take the law from the court, and-then assume that they will not be influenced in the determination of the issues by a distinct intimation from the presiding judge that notwithstanding a formal ruling by him excluding certain evidence it is his opinion as a lawyer that such evidence was and is competent. To strike out- evidence and say in the same breath that it was properly received is, in my opinion, equivalent to-leaving it in the. case for the consideration of the jury. A majority of the members of the court, however, deem the error which I have discussed insufficient of itself to- justify a reversal; and my own convictions on the subject are not so clear and unhesitating as to-induce me to dissent from their conclusion in that respect. Nevertheless, we are agreed that the judgment must be revérsed on account of the great number of erroneous rulings of a similar character, to which exceptions were duly taken in behalf of the appellant, admitting a large quantity of evidence which we think must have affected the jury and influenced their verdict, notwithstanding the subsequent efforts of the trial judge to correct his mistakes by striking out such evidence and instructing the'jury to disregard it.

The complaint alleged that the plaintiff was injured by reason of the fall of the elevator jn the defendant’s building on or about the' 29th day .of August, 1901, and thereafter on divers dates on and between the thirtieth day of August and the eleventh day of Sep-' tember in the same year. A great deal of testimony was introduced in his behalf, over objection and exception, as to accidents in the elevator and its failure to operate properly on occasions after the first day of the plaintiff’s employment. After all the evidence was in on both sides,, the trial, judge dismissed the complaint as té all occurrence's subsequent to the first fall of the elevator. Refers ring to this partial dismissal of the complaint, he said to the jury in his charge: “ The accident in question is claimed to have occurred' on the -28th of August in the .year 1901. Evidence has been given -that several times after that day and up to and including the 10th of September the elevator fell or descended more rapidly than it should have done; but, according to the plaintiff’s testimony, the injury which he claims he sustained was sustained by him at the time of the first descent of the elevator in question on the 28th of August. * * * ' He says, that upon that day he felt a snapping —I think that was the word he used—and at another time he- used tiie expression he felt a parting — in his back. That he locates in point of time as the first day that he was in the employ of the defendant, on the 28th of August, and hence I have granted the defendant’s motion to dismiss the complaint, so far as it relates to any occurrence subsequent to that time, because no injuries can be predicated upon any occurrence which took place after that time, and, therefore, I instruct you now that you should disregard the same as if it had not been given, all testimony of any conversations which were had with either James or Thomas McKay subsequent to the fall of the elevator or the descent of the elevator on the 28th day of August.” The McKays thus referred to were two persons, one of whom was described as the superintendent of the defendant’s building, and the other as the manager. The plaintiff had been permitted to testify again and again to statements made by these persons bearing upon the condition of the elevator, tending to show that it was out of order at various periods subsequent to the only fall which the court held could he the basis of any recovery in the action ; and so much of the trial consisted of the reception of evidence of this sort that it is impossible to read through the appeal book without being led to the conclusion that the jury must have based their verdict upon a mass of testimony which had really nothing to do with the vital question of the defendant’s responsibility for the condition of the elevator at the time it first fell with the plaintiff, and which was equal in quantity to the proof in the case which was really relevant to the issue. In our opinion to formally strike out this testimony after allowing it to stand as evidence in the cause to be considered by the jury up to the very time when the learned trial judge began to deliver his charge, was plainly inefficient to do away with the damage inflicted by its reception, and for this reason we think the defendant is entitled to prevail upon its appeal from the order denying the motion for a new trial. That motion was specifically upon the ground, among others, “ that improper testimony was admitted over defendant’s objection and exception, which said testimony was subsequently ordered to be stricken from the record, but which said order did not cure the error.” In Ives v. Ellis (169 N. Y. 85, 91) Chief Judge Parker, considering an attempt to cure the effect of an erroneous ruling admitting improper evidence, said that .before an appellate court would hold that such an error has been cured, it must feel sure that the effort of the trial court to correct the error was necessarily effective with the minds of the jury.” In the case at bar the erroneous rulings are so numerous and pervasive of the whole case as to satisfy us that the effort to correct them was necessarily abortive.

Hirschberg, P. J., Woodward and Jenks, JJ., concurred; Hooker, J., not voting.

J udgment and order reversed and new trial granted, costs to abide the event.  