
    Mary Greener, as Administratrix, etc., of Bernard Greener, Deceased, Respondent, v. General Electric Company, Appellant.
    Third Department,
    November 13, 1912.
    Master and servant — negligence — fall from traveling crane — evidence — res gestee — statement of deceased made immediately after the accident.
    Where in an action to recover damages for the death of plaintiff’s intestate, who fell from the cage of a traveling crane, the vital question was what caused the decedent to fall, it was not reversible error to admit a statement by the deceased that “ My feet is broke; the ladder bent over,” made in reply to a question as to what had happened, asked of him by one of plaintiff’s witnesses, who stood some ten or twelve feet from the place where the injured man was lying, and who hastened to him immediately after he fell.
    Lyon and Houghton, JJ., dissented, with opinion.
    Appeal by the defendant, the General Electric Company, from a judgment of the Supreme Court in favor of the plain- • tiff, entered in the office of the clerk of the county of Schenectady on the 29th day of January, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 30th day of January, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      James O. Carr, for the appellant.
    
      Fryer & Lewis [Edgar T. Brackett of counsel], for the respondent.
   Kellogg, J.:

147 Appellate Division, 462, contains a statement of the material facts in this case upon the former appeal. Upon the trial now under review it appears that immediately after the intestate fell upon the floor a comrade asked him what had happened, to which he answered: “My feet is broke; the ladder bent over.” This evidence was received over the defendant’s objection and exception. I think it is not reversible error for two reasons: (1) Within the rule laid down in People v. Del Vermo (192 N. Y. 470) it was proper to show that immediately after the intestate fell a comrade standing about ten feet away hastened to him and asked what was the matter and his immediate reply: “ My feet is broke; the ladder bent over.” In the Del Ver mo case when the deceased had fallen to the ground a comrade asked, “ What is the matter ? ” and he replied ‘‘ Del Vermo stabbed me ■ with a knife. ” This was held proper, not as a dying declaration hut, as the court says, as a part of the res gestee in the broadest sense of that term, ” a ‘ ‘ spontaneous exclamation.” At page 483 the rule is stated: “.Evidence is admissible of exclamatory statements declaratory of the circumstances of an injury when uttered by the injured person immediately after the injury; provided that such exclamations he spontaneously expressive of the injured person’s observation of the effects of a startling occurrence, and the utterance is made within such limit of time as presumably to preclude fabrication. It will be observed that this exception contemplates and permits proof of declarations by an injured person made after the event, so that it cannot fairly he said that the words spoken really constituted a part of the thing done.”

(2) It was a self-evident fact that the' ladder was bent over and that its bent condition was in some way connected with the fall of the intestate. The admission of the declaration, if inadmissible, was not reversible error. The absence of this declaration could not change the result. Ho reversible error is found in the record.

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

All concurred, except Lyon, J., dissenting • in opinion, in which Houghton, J., concurred.

Lyon, J. (dissenting):

The evidence as to the circumstances attending the happening of the injury which the jury has found caused the death of plaintiff’s intestate was practically the same as that given upon the former trial of this action, and stated in the opinion of Justice Kellogg, reported in 147 Appellate Division, 462, except that it is claimed by the defendant that it now appears that the ladder was not ordinarily used as a means of ascending and descending to and from the girder of the crane. Upon the present trial, however, objection was duly made and exception taken by defendant to the question asked of plaintiff’s witness Carlsen, who stood some ten or twelve feet from the place where the injured man was lying, and who hastened to him immediately after the fall, as to what had happened, to which plaintiff’s intestate answered: “My feet is broke; the ladder bent over.” While the question as to the admissibility of this evidence may he regarded as a close one (People v. Del Vermo, 192 N. Y. 470, 483; Scheir v. Quirin, 77 App. Div. 624), yet I think that within the holding in the cases of Waldele v. N. Y. C. & H. R. R. R. Co. (95 N. Y. 274) and Martin v. N. Y., N. H. & H. R. R. Co. (103 id. 626) the admission of the testimony constituted reversible error.

The declaration of plaintiff’s intestate was not in its nature spontaneous, within the rule admitting exclamations of that character. It was directly declaratory of the claim of plaintiff upon the trial that the defendant was negligent in having furnished a ladder of too light construction and not properly stayed to bear decedent’s weight, and hence that it bent over, throwing him to the pavement below. It was in effect a statement that the falling was not accidental, nor due to the negligence of plaintiff’s intestate, but that it was due to an occurrence upon which might be predicated negligence upon the part of the defendant. The vital question in the case was what caused decedent to fall.

The judgment and order appealed from should he reversed and a new trial granted, with costs to appellant to abide the event.

Houghton, J., concurred.

Judgment and order affirmed, with costs.  