
    Walter Frohle, an Infant, by James D. Bell, his Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Evidence— competent testimony hearing upon a vital issue cannot he stricken out on the motion of the party producing it.
    
    Where a witness, called by the plaintiff and cross-examined by the defendant, gives competent evidence bearing upon a question vital to both parties, his testimony cannot be stricken out on the motion of the plaintiff against the objection of the defendant
    Appeal by the defendant, The Brooklyn Heights Railroad Company, 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 16th day of January, 1899, upon the verdict of a jury for $23,000, and also from an order bearing date the 17th day of January, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Martin W. Littleton, for the appellant.
    
      A. H. Dailey, for the respondent.
   Hatch, J.:

At the close of the plaintiff’s proof the defendant offered no testimony, but stood upon the case as presented by the plaintiff. The action was to recover damages for personal injuries sustained by the plaintiff in coming in contact with a car of the defendant, which, it is claimed, ivas negligently operated. So far as material to the question which controls our judgment in the disposition of this case, it appeared that the plaintiff was an infant three years and four months of age at the time of the accident. We assume that the infant was properly upon the street, and that no negligence is to be attributed to the parent in permitting it to cross the track of the defendant under the circumstances established by the evidence. It appeared that the infant had crossed the track upon which the car was operated, and was about stepping over a loose rail which lay upon the adjoining track, which was being reconstructed and was not then in use, when the car operated by the defendant upon the other track struck the child with the running board upon the car, knocked it under the same and inflicted the injuries of which complaint is made. The claim of negligence upon the part of the defendant is based upon the mismanagement of the car, in not properly controlling the same. The evidence would have authorized the jury to find that the child, in the position it was after crossing the track, would entirely clear the track and the overhang of the car before the car would reach it. Up to that point the jury might well have said that a reasonably prudent person operating the car was justified in assuming that the child would clear the rail and car, and that the latter might be safely run by it. The child in fact cleared the track and came to the loose rail, where it hesitated about getting over. The car was then distant- at least twenty feet. Up to this point the jury might well have thought that the motorman was justified in believing that the child would be clear of danger, that it was safe to continue the speed of the car, and thereby exonerate the defendant from negligence. At this distance (twenty feet) it was evident that the child was in danger of being struck. The motorman was required then to use his best efforts to stop the caían d prevent injury. The evidence is that he applied the brake and attempted to stop the car, bringing it to a standstill within twenty to twenty-five feet, but not in time to prevent the accident. Hpon this testimony the jury might well have found that the defendant was guilty of no negligence, and, in consequence, that no liability attached. It is quite evident that the distance within which the car cpuld be stopped became a material question in the case. As bearing upon this question the plaintiff called an expert witness, who qualified as such, and elicited the fact that the car, by proper application of the brake, under the surrounding circumstances, could be stopped within a distance of from twenty to twenty-five feet. The witness was exhaustively cross-examined upon the subject, and his testimony became competent testimony in the case. It was not only competent but it was material to the defendant in a view of the case which the jury were authorized to adopt, i. e., that the appearance of danger to the child did not exist until the car was within twenty feet of it. If then the motorman applied the brake — and the proof tends to establish that he did — the jury were authorized to find from the testimony of the expert that he stopped the car as soon as it could be stopped, and thus would be removed the imputation of negligence. At the close of the proof counsel for the plaintiff asked that the testimony of the expert be stricken out, and that the jury be directed to disregard it. The court replied : “ I will strike it out.” The defendant excepted. Counsel for plaintiff then said : “ The eight miles an hour, the distance within which the car could be stopped.” The court replied : “ I will strike out his answer.” Thereupon counsel for the defendant said: “ My exception still remains on the record, I understand.” The court replied: “ The record remains as it is now.” It is not entirely clear from this colloquy just what was left of the testimony of this witness, although it seems reasonably clear that if the court qualified its first ruling, yet it struck out the statement of the witness as to the distance within which the car could be stopped, and to such ruling defendant’s exception fairly applied. We are not, however, embarrassed by this question, for, at the close of the charge, counsel for the plaintiff said to the court: “ Will you tell them to disregard the testimony of Whelan entirely ? ” And upon this request the court stated to the jury that the testimony was stricken out, and that the jury was to disregard it. To this ruling and charge the defendant excepted. The ruling was wrong, and presents reversible error. The court had no power to strike out the testimony, as it was competent, and in the case for the benefit of both parties, and both were entitled to have it remain. (Fredenburgh v. Biddlecom, 85 N. Y. 196 ; McCabe v. Brayton, 38 id. 196 ; Spaulding v. Hallenbeck, 35 id. 204.) The testimony was not only competent, but it' was important, as it bore upon an issue vital to both parties.

The judgment should, therefore, be reversed and a new trial granted.

All concurred.

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