#### David Kuperschmidt, Respondent, *v.*The Metropolitan Street Railway Company, Appellant.

(Supreme Court, Appellate Term,

May, 1905.)

Negligence — Collision between plaintiff’s wagon and street car — Evi- . dence — Ees gestae — Declarations of bystander — Objections to testimony — Closing address to jury — Improper remedy.

Where in an action for personal injuries it is important to know whether they were received immediately upon the happening of a collision between a wagon driven by plaintiff and a street railway car, or resulted from the persistence of the motorman in pushing the wagon ahead, testimony of one who saw the car pushing the wagon along, that he called out to the motorman *“*Why don’t you stop the car ? ” is inadmissible, it being no part of the *res gestee,*and incompetent in corroboration of the witness that the car was pushing the wagon.

No objection need be formulated to the reception of evidence which in no aspect of the case could have been proper.

Statements and insinuations, made by plaintiff’s counsel in his closing address to the jury, which find no support in the evidence, are improper and in a close base ground for the reversal of a judgment in plaintiff’s favor.

Appeal by the defendant from a judgment rendered in favor of the plaintiff after a trial before the court and a jury in the City Court of the city of New York, and also from an order denying defendant’s motion for a new trial.

Henry A. Robinson (Bayard TI. Ames and F. Angelo Gaynor, of counsel), for appellant.

George Sanders (J. Campbell Thompson, of counsel), for respondent.

Scott, J.

In this action it was the plaintiff’s contention that after he had driven onto the defendant’s track at a safe distance in front of an approaching car his wagon was pushed for a distance and finally crushed up against an elevated railway pillar. It was very important whether *353plaintiff’s injury was received immediately upon the happening of the collision, or whether it resulted from the persistence of the motorman in pushing the wagon ahead. One of plaintiff’s witnesses who did not see the first impact between the car and the wagon did testify that he saw the car pushing the wagon along. He was permitted to testify that when he saw this he called out to the motorman “ Why don’t you stop the car?” The reception of this evidence was duly excepted to, and constituted, in our opinion, reversible error. The witness did no act which contributed to the accident and was in no wise associated with its happening, but was a mere spectator. His declarations or exclamations constituted no part of the res gestee, and were, therefore, inadmissible. Ehrhard v. Metropolitan St. R. Co., 69 App. Div. 124. The only effect of permitting’ the testimony to be received was to corroborate the testimony of the witness that the car was pushing the wagon. For this purpose it was incompetent. The case was a close one upon the evidence and we may not say that the reception of this evidence did not influence the verdict. It is true, as pointed out by the respondent, that defendant’s counsel did not formulate his objection to the reception of this evidence, but it was not necessary to do so because there was no aspect of the case in which the evidence could have been proper. Furthermore the court had already announced, before the answer was given, that it would receive the evidence. The counsel for the respondent in his address to the jury permitted himself to indulge in statements and insinuations which find no support in the evidence and were clearly improper. This furnishes an additional reason for reversing the judgment.

Truax and Dowling, JJ., concur.

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