198 A.D. 618 | N.Y. App. Div. | 1921
The plaintiff has recovered a verdict against the defendant based upon the contention that the defendant managed and operated his automobile carelessly and negligently. A witness for the plaintiff testified to seeing the defendant driving a big limousine, and volunteered the statement that when he passed the trolley car upon which the witness was riding “ he shot in to the right, right sharp in front oí the car, and there was a machine coming up, and he went in in order to avoid the machine coming up, and he went on against the curb — he zigzagged in the road three or four times before he came to the West Brighton Station.” The witness testified that this happened from one-half to one mile distant from the place of the accident. The defendant duly moved to strike this testimony out, and when the motion was denied excepted to the ruling. Another witness for the plaintiff upon cross-examination volunteered the statement that in his opinion the defendant was incompetent to drive an automobile. The defendant also moved to strike this out, and, upon the motion being denied, excepted. We regard both of these rulings as erroneous. The place at which the witness saw the defendant driving his automobile unsteadily was too remote from the place of the accident to justify the conclusion that this unsteadiness continued until the accident happened. The question of defendant’s competence to drive an automobile was not raised by the pleadings and is not one that is the subject of opinion evidence. In any event, the witness was not shown to be qualified to give an opinion. The case was an exceedingly close one and these errors, therefore, cannot be overlooked.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Blackmar, P. J., Rich, Putnam and Kelly, JJ., concur.
Judgment and order reversed and new trial granted, costs to abide the event.