284 A.D. 984 | N.Y. App. Div. | 1954
— In an action to recover damages for personal injuries and for medical expenses and loss of services incidental thereto, judgment in favor of plaintiffs reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. After a witness for the defendant had testified, there was received in evidence, on her cross-examination, a statement which she had made out of court, which differed from her testimony given on the trial, and which if considered as affirmative evidence of the facts could have influenced the jury in deciding that the accident complained of was caused by defendant’s negligence. The learned trial court, in charging the jury, did not mention the statement or instruct the jury that it could be considered only to impeach the credibility of the witness (Matter of Boge V. Valentine, 280 N. T. 268; Allen v. Mendelson, 266 App. Div. 969) and refused to charge with respect to the statement as
