#### Marion Sturgis, Appellant, *v.*Fifth Avenue Coach Company, Respondent.

First Department,

December 6, 1907.

ITegligence — injury on stage coach. — pleading — answer not admitting ownership of coach — evidence—time of filing claim — operation of other .lines on same street.

A defendant by failing to deny .that it operated stage coaches on a certain street where the plaintiff, a passenger, claims to have been, injured, does not'admit that it was operating the" coach in which the plaintiff was traveling.

A defendant who maintains a system of reporting accidents and claims against it, may prove that its employees did not report the happening of an accident and that its first knowledge thereof came through a notice of claim from the plaintiff. But as the only probative force of such evidence is to excuse the defendant from calling witnesses who might explain the situation or contradict the testimony of those produced by the plaintiff, evidence of the date when the plaintiff first made a claim for alleged injuries is inadmissible to contradict her or affect hfer credibility when she placed her claim in the hands of her attorney on the happening of the accident in March and the attorney’s demand upon the defendant was made the following May.

*659
      *It seems,*that long unexplained delay in making claim in such an action may, under certain circumstances, indicate that the alleged accident never happened.

When the defendant contends that the plaintiff was injured in a stage coach of some other line, the plaintiff is entitled to ask an employee of the defendant familiar with the situation whether at the time of the accident there was any other stage line running on the same street. Such question does not call for a conclusion if the witness knows whether or not other stage lines were being regularly operated on the street.

Appeal by the plaintiff, Marion Sturgis, from a judgment of the Supreme Court in favor of the defendant* entered in the office of the cleric of the county of New York on the 21st day of March, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of March, 1907, denying the plaintiff’s motion for a new trial made upon the minutes.

*Lewis L. Delafield,*for the appellant.

*George & Wing,*for the respondent.

Houghton, J.:

The plaintiff claims to have been injured while riding as a passenger in one of defendant’s stage coaches, by the negligent shutting of the door by the driver.'

The issues litigated upon the trial not only embraced defendant’s negligence and plaintiff’s lack of contributory negligence, but whether or not plaintiff received any injuries at all in any stage coach, or if she did whether or not it was in one belonging to this defendant. «

By its failure to deny the allegation, defendant admitted that it was operating a stage line for the carriage of passengers on Fifth avenue in the city of New York, but it did not admit that it was operating the one by which plaintiff was traveling as a passenger.

The jury found a verdict for the' defendant and the plaintiff appeals and urges exceptions to the admission and exclusion of evidence, which we think -are well taken.

Defendant maintains a system of reporting by employees of accidents and of claims made against it therefor. The defendant called as a witness the assistant manager of its claim department and asked him when plaintiff first made a claim arising out of her alleged *660accident,.and against plaintiff’s objection the evidence was allowed on the ground that it tended to contradict the plaintiff and affect her credibility.

The accident was claimed to have occurred in March and the claim in the form of a letter from plaintiff’s attorney to defendant’s attorney was not made until the May following. The plaintiff had not testified that she presented any claim before May. She did testify that she put the claim in the hands of her attorney shortly after the accident. There was no reason, therefore, for admitting the evidence to contradict anything that plaintiff had testified to.

It was proper to permit defendant.to prove that its "employees did not report to it the happening of any accident, and if its first knowledge of the happening of an accident came through a notice of claim from plaintiff,' to' prove that fact. The rule permitting transportation corporations which have in operation a system of reporting accidents by its employees, to .prove that it receivéd no notice of the happening of the accident at the. time when it .is alleged to have occurred, has been adopted from the necessities of the situation. Accidents and employees of such corporations are both numerous. A report by an employee that an accident has happened upon his car or vehicle, enables the defendant to. investigate it at once and to ascertain who the witnesses are and to what facts they can testify. Lack of report does not prove absence of accident. The only probative force of lack of report is to excuse the defendant from calling witnesses who might explain the situation or contradict the testimony of those produced by a jplaintiff. Never having had any report that an accident has» happened, the defendant does not know what driver, or motorman, or conductor to call as a witness, and it can prove the lack of report for the purpose of excusing itself from .the imputation of not having called witnesses who might have explained the situation.

Long and unexplained delay in making any claim on the part of a plaintiff of the happening of ah accident might, under certain circumstances, he taken as indicating that the claimed accident" never .occurred. No such situation existed, however, on the part of this plaintiff. She "placed the claim in the hands of her attorney at Once and it did not affect her credibility or tend to contradict - her, that, the attorney delayed presenting the claim to the defendant.

*661In-addition, the plaintiff asked a witness, an employee of defendant and familiar with the situation, whether at the time of the accident there was any stage line running on Fifth avenue other than the one operated by defendant. The answer was excluded on the ground that it called for the conclusion of the witness.

■ The witness knew that defendant was so operating a stage line, and whether or hot any other line of stages was being regularly operated up and down the avenue was a fact which he could state if he knew. The evidence was material because defendant insisted upon the trial that if plaintiff was injured at all she was hurt in the stage of some other line than its own. The error was not cured by the ' equivocal testimony which the witness was subsequently permitted to give.

The errors we have pointed out were material,-and may have affected the verdict of the jury. The judgment and order should be reversed and a new trial granted, with costs to the appellant to ■ abide the event.

Patterson, P. J., McLaughlin and Lambert, JJ., concurred; Laughlin, J., concurred in result.

Judgment and ' order reversed, new trial ordered, costs to appellant to abide event.