233 A.D. 739 | N.Y. App. Div. | 1931
The finding that the defendant was intoxicated at the time of the accident was against the weight of the credible evidence. The defendant’s denial of such condition finds support in the testimony of the hospital interne, who treated the defendant immediately upon the arrival of the ambulance. The interne testified that the defendant’s shocked and dazed condition was due to the injuries received from the collision; that he detected no odor of liquor and that the defendant was sober, answered all questions readily and clearly and was well oriented. In our view this testimony far outweighed that given by the arresting officer and by the chauffeur of the taxicab with which the defendant collided. Neither of these witnesses had the same opportunity to observe the defendant’s real condition. Moreover, their testimony was to the effect merely that he seemed intoxicated. It follows that the judgment should be reversed and a new trial granted. Present—-Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ.; Merrell, J., dissents and votes for affirmance. Judgment reversed and a new trial ordered.