## Facts

- David Hodas was injured when his automobile collided with a train operated under federal control by the Director General of Railroads.
- A bystander, William Meddaugh, witnessed the collision and soon after signed a written statement describing what occurred.
- Before trial, Meddaugh suffered an unrelated injury that substantially impaired his memory of the accident.
- At trial, Meddaugh could not recall the events in meaningful detail and did not testify that his written statement had been accurate when made.
- Over objection, the trial court admitted Meddaugh’s written statement as evidence to prove the facts stated in it.
- The jury returned a verdict for the defendant, and Hodas appealed on the evidentiary ruling.

## Issues

1. Whether an unsworn written statement made shortly after an accident is admissible as substantive evidence when the witness cannot recall the events at trial and cannot testify that the statement was accurate when made.
2. Whether the foundation for admitting a writing as a past recollection recorded is satisfied when the witness neither remembers the events nor adopts the writing’s accuracy at the time of creation.

## Decision

- The Appellate Division reversed the judgment for the defendant and ordered a new trial.
- The court held that admitting Meddaugh’s written statement as substantive proof was reversible error because it was hearsay and did not qualify as past recollection recorded.
- The court noted that negligence and contributory negligence presented fact questions for the jury, but the verdict was tainted by the improper admission of the statement.

## Legal Principles

- A writing may be used to refresh a witness’s present recollection, but the evidence is the witness’s testimony from refreshed memory, not the writing itself.
- A writing may be admitted as past recollection recorded only if the witness testifies that: (a) the witness once had knowledge, (b) the writing was made or adopted when the matter was fresh, and (c) the writing accurately reflected the witness’s knowledge when made.
- If the witness cannot attest that the writing was accurate when made, the writing remains inadmissible hearsay when offered for its truth.
- Erroneous admission of such a statement warrants reversal when it may have influenced the jury’s verdict.

## Conclusion

The court ordered a new trial because a witness’s prior written account could not be admitted as past recollection recorded without the witness’s testimony that it was accurate when made, and its substantive use as proof of the accident’s details constituted prejudicial hearsay error.


Hodas v. Davis, 203 A.D. 297, 196 N.Y.S. 801 (N.Y. App. Div. 1922)