persons crossing the street with you? A. A couple of feet away” (fol. 116). About three or four people were standing with him waiting to cross (fol. 108). He claimed he was struck by the front part of the automobile on the side nearest the sidewalk he was coming from (fol. 117). The plaintiff testified through an official interpreter (fol. 36) and cannot read English or Italian (fol. 135). Third Avenue is 60 feet wide (fol. 144) and the distance from one car track to the other is five feet (fol. 145). The distance from the curb of Third Avenue to the nearest rail is 22 feet (fol. 143). These figures were established by Herman H. Lichtman, an employe of the Department of Highways of the City of New York (fol. 140). The plaintiff was the only witness in his own behalf as to how the accident happened, and upon the plaintiff resting, the defendant's Counsel duly moved to dismiss on the grounds of contributory negligence on the part of the plaintiff and that no negligence was shown against the defendant. The motion was denied, to which defendant's Counsel duly excepted (fols. 147-149). The defendant testified that he was traveling downtown on Third Avenue in a 1927 Dodge coupe (fols. 150, 151). There were no traffic lights on Third Avenue then (fol. 151). He was driving on the downtown car tracks and as he neared Fourteenth Street, the officer on duty at the intersection raised his hand. The defendant then started to stop his car and then the officer waived him on (fols. 152-154). At the time there were several people waiting along side the car tracks (fols. 154, 155). When the defendant's car reached about the center of the intersection, the officer stopped him and told him that a man had fallen down (fol. 155). The defendant looked out of the window of his car and saw the man on the ground right along the same place where the people were standing (fol. 156). The defendant testified that the plaintiff was at no time in front of him (fol. 159) and that no one was crossing at the time at all (fol. 160). The defendant and the officer took the injured man directly to St. Marks Hospital at 11th Street and Second Avenue, arriving there about three or four minutes after the accident (fol. 163). The defendant remained at the hospital for about 45 minutes (fol. 167), and as the injured man could speak no English, the defendant acted as interpreter in order to aid the doctor in determining what injury he had sustained (fol. 167). While at the hospital, the plaintiff told the defendant that he was looking for a job at the time and he had a bundle with him containing a small sandwich and overalls (fol. 174). The defendant went from the hospital to the station house (fol. 176). In the presence of the traffic policeman and the desk officer, Carney, the defendant made out a report of the accident, which he forwarded to the Motor Vehicle Commissioner in Albany (fol. 178). No part of the front of defendant's car struck the plaintiff (fol. 180). No one else was injured in this occurrence other than the plaintiff (fols. 182, 183). Plaintiff's Counsel placed in evidence the report made by the defendant on the very day of the accident (fol. 190). It recited (fols. 397, 398; Pltf.'s Ex. 2): “Sebastian Porrazzo, the injured, was standing in the street close to the trolley track at 14th St. and 3rd Ave, on the Northwest corner. Traffic was moving north and southerly direction. As I approached the corner of 14th St. going south and traveling at not more than 8 miles per hour, Sebastian Porrazzo seemed to fall against my rear right mudguard and was seen to fall on the street. Officer was less than 10 ft. away at time of accident. I stopped my car immediately and helped injured in my car and with the officer took injured to St. Marks Hospital, 10 St. & 2 Ave. N.Y.C.” A man by the name of Quinn voluntarily gave his name as a witness to defendant (fol. 200). The Plaintiff's Counsel's own assistant, Mathew M. Brennan, admitted that he had made diligent efforts to subpoena Quinn and could not find him (fols. 321-323). The defendant has been driving cars since 1917 (fol. 201) and was traveling about 8 miles per hour at the time of the accident (fol. 203). Plaintiff's Counsel, on cross examination, asked the defendant about getting the names of witnesses, to which the defendant answered: “No, I didn't ask anybody for names; we were in a hurry to get the man to the hospital, he was unconscious; we weren't looking for any names" (fol. 211). George T. Eckardt, the traffic officer, was produced by the defendant, and at the outset complained as to the short notice given to him to appear in court (fol. 243). He admitted that he was on duty at 14th Street and Third Avenue on the day of the accident (fol. 247). He was directing traffic there (fol. 252). While Eckhardt was on the stand, Defendant's Counsel found it necessary to have Mathew M. Brennan, who was leaving the courtroom, to return thereto (fol. 253). The vague answers given by the witness (fols. 256, 257) lead to the following question and answer, on direct examination : “Q. You recall Mr. Bonanno coming up to you out in the hallway before we resumed the court session this afternoon and ask you if you remembered the accident there on August 1st, 1927 ? A. Yes. Q. Did you tell him “Yes'? Mr. Ruggieri: Objected to; impeaching his own witness. The Court: Allowed. Q. Isn't that a fact? A. Yes, sir" (fols. 258, 259). The following is quoted from the record (fols. 262264): “Q. Officer Eckardt, I want you to tell this court and jury just what words that man said to you (indicating Captain Brennan), and just what words you had to say to him? Mr. Ruggieri: If I wasn't as anxious to know this as much as you I would object to the form of the question, but I want to hear it, I don't know anything about it, and I want to hear the answer too. A. He only said, 'You testify', as he had instructed Officer Carney. The Court: He said he wanted you to testify as Officer Carney was going to testify? The Witness: Yes. The Witness: That I didn't observe the accident. Q. This man here (indicating Captain Brennan) said to you that he wanted you to testify as Officer Carney testified, and also that you didn't see the accident? A. Yes, sir. Q. And what did you say to that? A. I didn't say nothing. The Court: Have you any present recollection of this accident? The Witness: Very briefly, your Honor. The Court: What do you recall? Tell us everything that you remember. Were you present when the accident occurred ? The Witness: I was standing at the intersection of the street. The Court: You were present there? Eckardt remembered going to the hospital with the defendant in his car (fol. 265). He admitted that Mr. Bonanno took a memorandum of the accident (fol. 266). He admitted that the memorandum referred to was the report to Albany (fols. 266, 267). He was able to state that defendant's car was going south (fol. 290). He admitted he got the name of Quinn as a witness (fol. 297). He admitted : “The Court: Did you see anybody go south against your directions? The Witness: No” (fol. 290). Yet when Mr. Ruggieri interrupted the direct examination to ask "Did you see this accident?” he answered “No” (fol. 276). “Q. They were all there, weren't they? A. Yes, they were. Q. How long were you speaking in the hall to these three gentlemen (indicating the defendant's counsel, his assistant, and the defendant), approximately? A. About 10 minutes. Q. How long were you speaking to Captain Brennan, approximately? A. About a minute and a half or two minutes” (fol. 300). He couldn't talk Italian (fol. 303). Brennan's excuse for talking to Eckardt was that Mr. Ruggieri asked him to serve a subpoena on Eckardt (fol. 310). At the close of the entire case, Defendant's Counsel renewed the motion to dismiss, which motion was denied and exception taken (fol. 323). As to the Court's Charge. The learned Court, in his charge to the Jury, stated as follows in reference to the traffic officer: “And what he tells you is of the most vital importance. There was an intimation, as I |
