#### John Whittaker, plaintiff and respondent, *vs.*The Eighth Avenue Railroad Company, defendants and appellants.

1. The court being bound to take judicial notice of the fact that the Eighth Avenue, in the city of New York, is a public highway, where a complaint avers that a personal injury to the plaintiff was done there, caused by the willful and improper conduct of the defendants’ servant, an amendment stating that the injury occurred in a *"puílic*” highway is wholly Unnecessary.

2. The allowance or rejection of such an amendment, on the trial, is entirely discretionary.

3. In an action against a city railroad company, to recover damages for a personal injury, occasioned by .the improper conduct of the'driver of the defendants’ car, any expression of such driver, either before, during or immediately after, and in the heat of the occurrence, showing his then design to "do an injury, and not being a declaration predicated upon an after-thought, is admissible in evidence.

(Before Barbour, McCukn aud Jones, JJ.)

Heard March 4, 1867;

decided--, 1867.

This action was instituted against the Eighth Avenue" Railroad Company, to recover damages for injury done to the person of the plaintiff by means of an alleged *willful*act *651of the driver of a car belonging to the defendants. The complaint charges “ that the driver *willfully*drove said carriage against the plaintiff.” The plaintiff’s counsel, in his opening, stated that the damages sought to be recovered, were for a *willful*running over the plaintiff, and that the act was *intentional and designed.*At the close of the opening, the defendants moved to dismiss the complaint, on the ground that it stated no cause of action for which the defendants were liable, but that the driver *willfully*drove said carriage against the plaintiff. That a master was only-responsible for the negligent acts 'of his servant, and such tortious acts as the master expressly- commanded. The judge refused to dismiss the complaint, and the defendants excepted to the ruling of the judge for these reasons, *First.*That the statute of 1824 (2 *R. S.*996, § 6) was passed before any railroads were in existence in the state of New York, or in any portion of the United States, and that cars traveling upon such roads were not within the contemplation of the legislature, or the purview of the statute. *Second.*That the provisions of the statute were in derogation of the common law and penal; and that, for these reasons, it was to be construed strictly, and not liberally, so as to embrace cases not within its words. *Third.*The statute names “ carriages running or traveling on turnpikes or public roads,” and does not apply to railroad companies, because these roads are not, in any. sense, public ones, and the companies owning them are private corporations, although the uses of the roads are public.

The plaintiff’s counsel' then moved to amend the complaint, by inserting therein the word “ public,” which amendment was allowed by the court, and the ruling excepted to by the defendants. During the progress, of the case, Abraham Grant was called as a witness for the plaintiff, and asked, “ Did you hear the driver say any thing after he passed?” The defendants objected to the declarations of the driver being given in evidence. The objection was overruled, and the defendants excepted. After the *652evidence on both sides had been given to the jury, the defendants’ counsel requested the learned judge to charge the jury on five several propositions of law, which the judge declined to do, upon the ground that the complaint against the defendants was for a *willful act,*and not a negligent one, and that the points propounded had no relevancy to the case. To this ruling, the defendants’ counsel excepted.

The jury found a verdict in favor of the plaintiff, - and assessed the damages at $2500. The defendants were allowed twenty days' in which to make a case; and the exceptions were ordered to be heard at a general term in the first instance.

*J. W. Ashmead*and *It. N. Waite,*for the defendants.

*J. Townsend,*for the plaintiff.

By the Court, Barbour, J.

Upon the trial of this action, which was brought to recover damages for injuries to the person, caused by the willful and improper- conduct of the defendants’ servant, the plaintiff was allowed to amend his complaint, so as to make it conform, in letter, to the requirements of the act of 1824, (21 *R. S. 966,)*authorizing recoveries to be had against the owners of carriages running upon any *'public*highway, by adding the word “public” before “highway.”

The defendants’ exception to this is untenable. As the court was bound to take judicial notice of the fact that the Eighth avenue, in the city of New York, was a public highway, and the complaint already averred that the injury was done there, such amendment was wholly, unnecessary. Even if that had been otherwise, however, the allowance or rejection of the amendment was entirely discretionary as the case then stood.

The appellants also object that the statements made by the driver immediately after the occurrence of the injury, *653were improperly admitted in evidence. 'Although I find no exception to such admission, it. may be proper to say that any expression of the driver, either before, during, or immediately after, and in the heat of the occurrence, showing his then design to do an injury, and not a declaration predicated upon an after-thought, was admissible.

There being no other exception of note, except that of the right to recover at. all, the exceptions should be overruled, and judgment entered for the plaintiff. The case made by the pleadings and proofs, is clearly within the letter, as well as spirit of the act.