Livant v. Adams

Oct 9, 1962
Versions:17 A.D.2d 784
232 N.Y.S.2d 641
1962 N.Y. App. Div. LEXIS 7790

Resettled judgment entered December 7, 1961 insofar as appealed from by defendant-appellant Irving Livant unanimously reversed on the law and in the exercise of discretion, that judgment and verdict as to him vacated, and a new trial ordered, with costs to abide the event. The question of defendant-appellant’s contributory negligence was properly put to the jury. On the evidence presented the jury might have reasonably concluded that defendant-appellant’s speed was unreasonable and a concurrent cause. The cases involving an automobile driver confronted with an unexpected situation, not of his making, are beside the point (Rowlands v. Parks, 2 N Y 2d 64, 67-68; Meyer v. Whisnant, 307 N. Y. 369; Gooch v. Shapiro, 7 A D 2d 307, affd. 8 N Y 2d 1088). However, the conduct of the trial court justifiably created the impression for counsel and the jury, and in the record, of the Judge’s disbelief in the defense interposed by defendant-appellant. Inevitably a trial court sets the pattern for the jury. The brief but derogatory cross-examination by the court of defendant-appellant and, perhaps, of one of this defendant’s witnesses, openly evinced disbelief in the testimony. (The trial court’s comments to appellant’s counsel at the conclusion of the trial confirmed the existence of pique at counsel’s failure to settle the ease on terms recommended by the court.) The trial, therefore, was not fair (cf. Kamen Soap Prods. Co. v. Prusansky & Prusansky, 11 A D 2d 676). Concur — Botein, P. J., Breitel, Valente, Stevens and Steuer, JJ.