Thе evidence adduced upon the trial was of such a character as to make the question of the defendant’s negligence and the plaintiff’s freedom from contributory negligence issues of fact for the determination of a jury. The extent of plaintiff’s injuries was sharply litigated, and a large part of the evidence was directed to that question, the plaintiff claiming in effect that as a result of the accident he not only suffered severe and constant pain up to time of the the trial, but that his injuries were of a permanent character, and that the pain and suffering would continue through life. On the other hand, the defendant contended that the plaintiff greatly magnified his in juries; that at the time of the trial he had substantially recovered from the effects thereof, and the defendant insists
From the evidence contained in the record before us we are not prepared to hold that the verdict of the jury is excessive, and for that reason to reverse or modify the judgment. It is not necessary to pass uрon that question at this time. It is apparent, however that the real extent and character of the plaintiff’s injuries is a matter of such uncertainty as to require thаt the determination of that issue should not be prejudiced by improper evidence, or any procedure during the trial which might improperly affect the result.
This brings us to a consideration of the only exception which need be considered. A Mr. Smith, who at the time of the accident was defendant’s superintendent, was called as a witness on behalf of the defendant. IJpon his direct examination he stated that two or three days after the accident he called upon the plaintiff at his home, in company with a Dr. Rockwell, and that he requested the plaintiff as soon as he was able to come and see him, Smith, and that perhaps the matter could be adjusted; that the plaintiff promised he would, but failed to do so. On cross-examination Smith was asked by plaintiff’s counsel: “ Q. Who is this- Dr. Rockwell, the one that went down to see Manigold (the plaintiff) % (Defendant’s Counsel): Objected to as incompetent and immaterial. We asked him if he made a visit, and he said he went there with Dr. Rockwell. (Plaintiff’s Oounsel): I want to know who Dr. Rockwell is % The Court: I think this is cross-examination and you may ask it. (Defendant’s Counsel): Exception, please. (Plaintiff’s Counsel): Q. Who is Dr. Rockwell ? A. Dr. Rockwell is a man that was visiting here at that time, a friend of mine from New York. Q. He went there on purpose in reference to this matter % A. He went with me. Q. Went there representing whom ? (Dеfendant’s Counsel): I object to that as incompetent and immaterial. * * * Objection sustained. (Plaintiff’s Counsel) : Q. Didn’t Dr. Rockwell go there to try and settle with Manigold, and wasn’t he representing the insurance company back of this company ? (Defendant’s Counsel) : I object to that question, and not only object to it, but we take an exceрtion to the question put by counsel. The Court: The point
The law is well settled that it is improper to show, in an action, of negligence, that the defendant is insured against loss in cаse of a recovery against it on account of its negligence. This was expressly held in the case of Wildrick v. Moore (
In the case of Cosselmon v. Dunfee (
In the case at bar it is impossible to say whether the statement of the counsel that there was an insurance company behind the defеndant influenced the jury in rendering the verdict which it did. We have-called attention to the fact that, the question as to the extent of the plaintiff’s injuries was, upon the evidence, a close question of fact; one that was involved in doubt, and its determination ought not to be prejudiced by imparting to the jury the information that the verdict rеndered by it, whatever its amount, would not have to be paid by the defendant, but would be paid by an insurance company which was back of it. Dr. Rockwell was not callеd as a witness. Nothing which he did or said had been disclosed to the jury. Under the circumstances, who he was or whom he represented was entirely immaterial; had no beаring upon any issue in the case. No other conclusion can be reached than that the question was asked and the statement made by plaintiff’s counsel for thе sole purpose of getting before the jury a fact which lie was not entitled to, and for the purpose of improperly influencing its action. It cannot be said that it did not have such effect. The plaintiff, upon whom the burden should rest, has not satisfied us that the improper statement did not influence the verdict rendered.
We think the learned trial court committed error in charging the jury, in substance, that in an action of this character the burden of proof was thrown upon the defendant. In an action of this kind -a plaintiff, in order to be entitled to recover, must establish by a fair preponderance of proof that the. defendant was guilty of negligence whiсh caused the injury, and that he was free from contributory negligence. The burden of proof upon these questions is upon
It follows that the judgment and order appealed from should be reversed.
Adams, P. J., Spring, Williams'and Nash, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.