Opinion
November 8, 1973
Judgment, Supreme Court, Bronx County, entered on January 16, 1973, so far as appealed from, unanimously reversed, on the law, and the case remanded to Trial Term, Supreme Court, Bronx County, for trial anew, with $60 costs and disbursements to abide the event. This is a wrongful death action. Plaintiff-respondent administrator's decedent was a passenger, with her daughter, Mrs. Johnson, in a taxi owned by the corporate defendant-appellant and driven by the other. It was testified that the decedent received her fatal injuries as the result of an accident in which defendants' cab stopped short and was then hit in the rear by a vehicle driven by one Snead. The crucial question on the trial against these defendants was whether the injuries resulted from the short stop or the subsequent impact from the rear, or possibly both. Prior to the testimony given by Mrs. Johnson, the Snead defendants, owner and driver, were removed from the case by settlement. Mrs. Johnson testified that her mother's injuries were caused by the short stop. Confronted by a statement said to have been to the contrary, i.e., that the injuries resulted solely from the blow to the cab's rear she denied recalling having made it, though there was evidence that she had admitted that the signature thereon was hers. The statement appeared to have been made the day of the accident; her evidence was given after the settlement with the driver and owner of the second car. Obviously, the contents of the statement, excluded by the trial court, and evidence of the circumstances surrounding its origin, would have been most relevant on the question of her credibility, and it was error to bar this evidence. The same observation applies to an offer of proof, excluded by the court, that Mrs. Johnson herself had sued only the Snead defendants. Thus a new trial is required.
Concur — Markewich, J.P., Murphy, Lane, Steuer and Tilzer, JJ.