Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
Defendant appeals from a judgment entered in the Superior Court, Law Division, on a jury verdict of $4,500 in favor of plaintiff for injuries she sustained when she slipped and fell on the assertedly icy platform at defendant's Rahway station after alighting from a train on which she had traveled thereto from Newark as a passenger of the railroad.
There was evidence that a freezing rain and hail storm had begun about noon on December 29, 1960, the day of the accident,
and continued intermittently during the afternoon, including the time of the accident at Rahway. Plaintiff testified that her train reached Rahway shortly after 5 P.M. and that it was dark. In leaving the train she stepped onto the platform with her left foot, "slipped on the ice" and fell, sliding after she fell on "that platform of ice that was there." On redirect examination she testified the ice where she fell was an inch thick. There was no conductor or trainman to assist her at the train exit.
A passenger conductor on the train in question testified for defendant that there were four cars on the train; arrival at Rahway was during the "rush hour"; about 100 passengers detrained at Rahway; and that there were three trainmen for the four cars. The witness was at a train exit about 35 feet from the one at which plaintiff emerged. The weather on the day in question was a mixture of hail and sleet which "froze over" when it hit the ground and the station platform. The surface became wet if walked on but would "freeze right over again" as the rain came down.
One of the main contentions of the defendant on this appeal is the excessiveness of the verdict. It is claimed, moreover, that the verdict is so far out of line with the proofs as to the extent of plaintiff's injuries as to fortify defendant's argument that another alleged error -- admission of testimony that another passenger fell on the Rahway platform at the same time as plaintiff -- exerted a strongly prejudicial effect against defendant with the jury. Since we have decided, for reasons to be stated, to reverse on the latter ground, we shall not discuss the evidence relating to plaintiff's damages or whether the amount of the verdict is sustainable on the proofs, except to say that in our judgment the jury's allowance was extremely liberal, to say the least.
Over objections by defendant that the testimony was hearsay and prejudicial, plaintiff was allowed to testify as part of the " res gestae " that as she was being assisted to her feet after her fall she "heard someone say the other woman fell." Plaintiff's reference was purportedly to a woman who, she
had said, followed her out of the same train exit and whom she later saw in the station in a wheelchair. The admission was preceded by an extended colloquy out of the presence of the jury during which plaintiff made a proffer of proof to the effect that someone "hollered that someone fell," and defendant objected on the ground that such proof was not only hearsay but "not relevant to the issues of this case and prejudicial." Plaintiff did not offer the proof as competent on the issues at trial, but solely "to attack the credibility of the defendant" in that defendant had omitted the name of the "other woman" in responding to an interrogatory propounded by plaintiff requesting the names and addresses of all persons having knowledge of the facts relative to the cause of action.
Defendant strenuously objected at the trial to plaintiff's asserted justification for submission of the proof, and we think it was clearly right. Plaintiff obviously knew prior to trial that another woman had fallen and had been interviewed by the railroad. Her counsel therefore knew that the answer to the interrogatory was incomplete and could by motion prior to trial have compelled defendant to repair the omission and then determined by inquiry of the other woman whether to subpoena her as a witness to give any competent evidence within her knowledge relevant to plaintiff's claim. Plaintiff did not at oral argument contend, when counsel was questioned on the point, that such testimony could competently have included the fact of the other woman's fall. Its prejudicial effect would be obvious. It was therefore plainly improper for the trial court to have permitted such testimony to come in through the back door as a supposed sanction for defendant's failure to submit a complete answer to the interrogatory.
In this view of the situation it matters not whether the testimony, if properly evidential as to the issues before the court, would have been competent, as against the hearsay rule, under the " res gestae " exception (presumably as an excited utterance). In this regard it may be noted, ...