25 A.D.2d 594 | N.Y. App. Div. | 1966
Appeals by administrator as a plaintiff and as a defendant from judgments entered upon verdicts in personal injury and wrongful death actions predicated on negligence in the operation of an automobile involved in a one-car accident. The plaintiffs Dumas contend that the intestate, Joan Martin, was the operator of the automobile, which was owned by Charles Marshall; while the administrator asserts that it was operated by Gerald Marshall. There was no claim that Miss Dumas, the third occupant of the ear, was driving; and the jury’s special finding that the car was -operated by Miss Martin, rather than Mr. Marshall, was supported by the overwhelming weight of the evidence and, in particular, by physical evidence which seems nearly incontrovertible. In this situation, error in the receipt of certain hearsay evidence on the issue of identity, cumulative to the great mass of competent evidence, was not prejudicial and does not warrant reversal. (CPLR 2002.) There appears no merit in appellant’s contention that there was error in the court’s charge that the administrator, in his plaintiff’s action, had the burden of proving that the car was operated by Gerald Marshall. While it is true, as appellant argues, that the administrator did not have the burden of proving his intestate’s freedom from contributory negligence, proof that Mr. Marshall was driving, or, conversely, that Miss Martin was not, was essential to establish a duty owed to Miss Martin by the absent owner of the ear, as the essential prerequisite to proof >of an actionable breach of that duty — -this quite aside from the issue of contributory negligence as such. The issue of identity was properly determined by a special verdict, in writing, applicable to all the eases, rendered pursuant to 'the court’s direction that the jury respond to three questions — whether Mr. Marshall was the operator, whether Miss Martin was the operator or whether the jury was unable to find which of these two was the operator.