Opinion
October 10, 1955.
Present — Nolan, P.J., MacCrate, Schmidt, Beldock and Ughetta, JJ. [See post, p. 1104.]
Action by plaintiff Lillian Hansell to recover damages for personal injuries arising out of a collision between an automobile owned and operated by her husband, plaintiff John Hansell, in which she was a passenger, and one owned and operated by defendant, and by said husband to recover damages for injuries to his person and property and for loss of services. Plaintiffs appeal from a judgment, entered upon a verdict for the defendant. Judgment unanimously affirmed, with costs. Although it was, in our opinion, error to exclude evidence offered by the plaintiffs that defendant's automobile was going "fast", at the time of the collision, and that plaintiff Lillian Hansell had exclaimed, immediately prior to the collision, that defendant was "coming too fast" ( Marcucci v. Bird, 275 App. Div. 127; Nelson v. Nygren, 259 N.Y. 71), the error may be disregarded (Civ. Prac. Act, § 106). It is our opinion that, if the evidence so excluded had been admitted, it would not have been sufficient, when considered in conjunction with the evidence submitted to the jury, to establish negligence on the part of the defendant.