209 A.D. 283 | N.Y. App. Div. | 1924
Lead Opinion
Late on the night of June 24, 1922, plaintiff’s intestate was killed in an automobile accident in the town of Wheeler. A severe storm several days before the accident had swept out a culvert crossing a country highway running north from the village of Avoca. Pending the repair of the culvert, the town authorities placed a barrier across the highway about 300 feet to the south. The road at that point was a dug way with a high bank rising to the east, and on the west a steep bank running down about 95 feet to the end of the creek, on which bank was a considerable growth of trees and bushes. The barrier consisted of an abandoned telephone pole, wired fast to a tree on the west side of the roadway, and swung around so that it extended at right angles from the tree across the road, with its small end on a box set in the middle of the road. From the box to the other side of the road was fastened a scantling. No light was placed on the barrier. Decedent, driving a Ford car in which were his wife and child and two boys, was on his way to the home of his mother-in-law. Between ten and eleven o’clock on a dark night the car collided with the barrier, was overturned down the westerly bank, and the driver was killed.
The evidence in the case establishes the liability of defendant beyond question. It is here sought to have the judgment reversed on several grounds, of which one only merits discussion.
The trial began on November 16,1922. The verdict was rendered on November 28, 1922. Plaintiff swore sixteen witnesses in chief. Defendant swore forty-two, of whom at least half testified to decedent’s intoxicated condition on the evening of the accident, to his drinking habits for years prior thereto, to his unsteady and unreliable qualities as a workman, to his matrimonial troubles,
The judgment should be affirmed.
All concur, except Clark, J., who dissents in an opinion.
Dissenting Opinion
I dissent and vote for reversal and a new trial, on the ground that the persistent indulgence of plaintiff’s counsel in inflammatory and intemperate remarks in his summary to the jury tended to create such a prejudice against the defendant as to require a new trial in the interests of justice.
Such remarks were not justified by any language claimed to have been used by defendant’s counsel and not shown by the record. We cannot assume that this inflammatory language did not affect the jury. It was calculated to prejudice them against a municipal corporation and in favor of a widow with small children, and that is the single and sufficient reason for granting a new trial. (Halpern v. Nassau Electric R. R. Co., 16 App. Div. 90; Bagully v. Morning Journal Assn., 38 id. 522; Baird v. Douglass, 199 id. 818; Strickland v. N. Y. C. & H. R. R. R. Co., 88 id. 371; Hoffman v. New York Rys. Co., 84 Misc. Rep. 637; Weisman v. Baer & Hoffman, Inc., 121 id. 790.)
It is sufficient that objection be called to the attention of the judge and exceptions taken to the ruling without interrupting the argument. (38 Cyc. 1508.)
Judgment and order affirmed, with costs.