190 A.D. 278 | N.Y. App. Div. | 1920
This action was brought to recover damages for the death of plaintiff’s intestate, who was run over by a motor truck on October 3, 1917, in Lenox avenue near One Hundred and Thirty-fifth street, in the city of New York. There was a fair question of fact for the jury both as to the negligence of the chauffeur who was driving the truck and as to the intestate’s freedom from contributory negligence, and the verdict resolving both these questions in favor of plaintiff was warranted by the evidence.
The main question involved in this appeal, however, is whether the chauffeur at the time of the accident was the servant and under the control of the defendant, or whether he was at the time the servant of another party. The defendant rested at the close of plaintiff’s case, and the testimony about to be referred to was, therefore, all given by witnesses
Had a different conclusion been reached as to defendant’s liability, it would still have been necessary to reverse the
It is obvious that the sole effect of this testimony was to prejudice the defendant by conveying the intimation that, as the dairy company was bankrupt, the sole chance for recovering any damages for the regrettable death of the young man was by a verdict against the defendant. The receipt of this evidence constituted reversible error.
The judgment and order appealed from will be reversed and . a new trial ordered, with costs to appellant to abide the event.
Clarke, P. J., Page and Philbin, JJ., concur; Smith, J., concurs on the ground of improper injection into the case of the bankruptcy of the dairy company.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.