#### TINKER v. NEW YORK, O. & W. RY. CO.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Evidence—Statements oe Third Persons.

In an action for personal injuries, it was proper to exclude a statement made in plaintiff’s presence, at the place of the accident by one who had *673seen it, where the statement was not made immediately after the accident, and, when it was made, plaintiff was suffering from the injury, so that she had to be helped to a carriage.

Appeal from circuit court, Chenango county.

Action by Mary A. Tinker against the New York, Ontario & Western Railway Company for damages for personal injuries. From a judgment for plaintiff, and an order denying a motion for a new trial,, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ~

Howard D. Newton and Edward B. Thomas, for appellant.

George P. Pudney and George W. Ray, for respondent.

MERWIN, J.

The main questions upon the merits in this case were considered by this -court upon a former appeal (71 Hun, 431, 24 N. Y. Supp. 977), and need not be reconsidered here. We find no-good reason for departing from the views there expressed. They were in substance followed by the trial court on the trial now under review, and all the material questions of fact were submitted to the jury in a charge that, as a whole, presents no good ground for exception.

Our attention is called to a number of exceptions to rulings upon evidence. It is specially urged by the appellant that serious error was committed in rejecting evidence of what the husband of the-plaintiff said as to the cause of the accident soon after it occurred. A witness was called by the defendant, who, after testifying that he-lived about 20. rods from the crossing where the accident happened, said: “I remember the occasion when Mrs. Tinker was thrown from the wagon at that crossing. I saw the party there at the crossing after it occurred, and went out there at the time. When I got there, they were kind of getting together,—picking up things, picking up their shawls and robes, and so on, and what fell out. I asked them, what the matter was. I had a conversation with Mr. Tinker in the-presence of Mrs. Tinker.” The witness was then asked the question:. “Did Mr. Tinker say to you, in the presence of Mrs. Tinker, that the back seat tipped up, and threw her out backward on the ground?”' The witness was also asked to state what conversation occurred" then in the presence of Mrs. Tinker between the witness and Mr.. Tinker. This evidence is claimed to have been competent on two-grounds: First, as part of the res gestae; and, second, as a conversation in the presence of the plaintiff. It was not claimed that Mrs.. Tinker took any part, in the conversation. She was then suffering from the injury she had received, and had to be assisted to the- carriage.

In 1 Greenl. Ev. § 197, note c, it is said:

> “The mere silence of one when facts are asserted in his presence is no-ground of presuming his acquiescence, unless the conversation were addressed to him under such circumstances as to call for a reply. The person must be in a position to require the information, and he must ask it in good faith,, and in a manner fairly entitling him to expect it, in order to justify any inference from the mere silence of the party addressed. If the occasion, or the nature of this demand, or the manner of making it, will reasonably justify silence, in a discreet and prudent man, no unfavorable inference there*674from should on that account be made against the party. And whether the silence be any ground of presumption against the party will always be a question of law, unless there is conflict in the proof of the attending circumstances.”

Apparently, the witness did not see the accident. He saw the party there at the crossing after it occurred, and then went to the place. How long it was after the accident that the conversation occurred is therefore left indefinite. According to prior evidence on the part of the plaintiff,- the frightened team ran some distance, and there had been time for the husband to stop it, get out of his wagon, and go back where his wife was, and assist her to get up, and, as one witness says, “she sat awhile there.” The conversation called for was not, as in some of the cases, immediately after the accident. Assuming the offered evidence to have been material, we are of the opinion that the court did not err in excluding it.

We have examined the other exceptions, and find no good ground for reversal.

Judgment and order affirmed, with costs. All concur.