Opinion
August 1, 1961
Appeal by the defendants, the City of Albany and Albany Police Department, from a judgment of the Supreme Court, Albany County, in favor of plaintiff administratrix in a wrongful death action. About daybreak on May 13, 1957 a police prowl car owned by the defendant, the City of Albany, and operated by the defendant Wells, in the performance of his duties as a police officer, collided with another vehicle owned and operated by one Muraschi at the intersection of Madison and South Lake Avenues in that city. The intestate, Samuel B. Robinson, also engaged in the performance of his duties as a police officer, was a passenger in the prowl car and was instantly killed as a result of the collision. In an action to recover for his alleged wrongful death, his administratrix was awarded the sum of $125,000 against the defendants, the City of Albany, its Police Department and Wells. The jury's findings in favor of plaintiff on the questions of negligence and contributory negligence were amply supported by the evidence. The City of Albany was not compelled to carry workmen's compensation on its police officers and voluntarily had not brought them within the coverage of the Workmen's Compensation Law. The trial court held that section 50-a Gen. Mun. of the General Municipal Law imposed liability on the municipality for the negligent acts of its employee Wells and charged the jury accordingly. We think that this was a correct interpretation and definition of the consequence of the section. ( City of Albany v. Standard Acc. Ins. Co., 7 N.Y.2d 422; Kosiba v. City of Syracuse, 287 N.Y. 283, 289; Court of Claims Act, § 8.) Over the objection of the defendant city, counsel for plaintiff was permitted to interrogate Wells with reference to prior motor vehicle accidents in which he was involved while a member of the Police Department for the purported purpose of showing his incompetency as a driver. After an interval of several trial days, this testimony was stricken from the record on motion of plaintiff's counsel. The Trial Judge then told the jury totally to disregard the evidence and to obliterate it entirely from their minds and at the same time added that he would remind them again accordingly during his charge which, in due course, was done. This evidence was improperly received. ( Grenadier v. Surface Transp. Corp., 271 App. Div. 460.) We are of the opinion that the court effectually rectified the error by its clear positive instructions, twice conveyed to the jury, to disregard it. At the time of his death, Policeman Robinson was 26 years of age and was earning $54 per week. He was survived by a widow of the same age and two children, aged 4 years and 11 months respectively. He had a life expectancy of 38.11 years. His funeral expenses amounted to $655. In the circumstances presented here we regard the jury's award as grossly excessive. ( Hinsdale v. New York, N.H. H.R.R. Co., 81 App. Div. 617, 621.) It should be reduced to the sum of $65,655. Judgment reversed on the law and the facts and a new trial ordered unless plaintiff stipulates to accept the sum of $65,655 within 20 days after the service of the order to be entered hereon, in which event the judgment is modified and, as so modified, affirmed. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.