McPhillips v. New York, New Haven & Hartford Railroad

The learned counsel for the respondent is quite mistaken in the supposition that the court misconceived the evidence in the record, and confounded the evidence on a former trial with the evidence on the trial under review. Having laid the foundation, imperative in the case of a witness not a party, but here unnecessary, the defendant introduced the testimony of the' plaintiff, Patrick J. McPhillips, on a former trial, as follows: “Question. „What is the distance * * * as to where the train was when he [the intestate] fell? Answer. Between the third pole, 277, feet from where he fell. Q. Did you make the measurements? A. I made the measurement myself.” This, being the statement of the plaintiff in the. action, was not only operative in contradiction of his present testimony, but, as.the admission of a party, was competent evidence upon the issues in litigation. Besides, there was much other evidence of the same tendencv-and effect. Motion denied.