273 A.D. 942 | N.Y. App. Div. | 1948
Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: Plaintiff has recovered a verdict for the death of her son in a motor vehicle accident occurring in the State of Florida under circumstances which the jury has found constituted, under the Florida statute, gross negligence or willful or wanton misconduct on the part of the operator of the truck in which plaintiff’s intestate was riding as a guest. The complaint alleged, among other things, that the truck was being operated at the time with defective and faulty brakes. Over objection of the defendant owner of the truck, the court permitted another guest on the truck, who was travelling with the deceased, to testify that when they boarded the truck, the operator, who was not a party to the action and was not called as a witness, warned the deceased “ not to kick the air hose in the back of the truck because he had been having trouble with the brakes.” Upon the evidence in the record, a question of fact was presented as to the issue of gross negligence or willful or wanton misconduct. The issue, however, was close and we cannot say that the defendant was not prejudiced by the receipt of such evidence. Mere hearsay declarations alone, without, as in this ease, any other evidence which established that the truck brakes were defective, are clearly prejudicial. All concur. (The judgment is for plaintiff in an automobile negligence action. The order denies a motion for a new trial.) Present — Taylor, P. J., McCurn, Love, Vaughan and Kimball, JJ.
