Opinion
February 18, 1971
Appeal from the Oneida Trial Term.
Present — Goldman, P.J., Del Vecchio, Witmer, Gabrielli and Henry, JJ.
Order unanimously modified in accordance with the memorandum herein, and as so modified affirmed, without costs. Memorandum: In these personal injury and wrongful death actions tried together plaintiffs were awarded verdicts in the amounts of medical expenses incurred by the injured plaintiff and funeral expenses for the deceased. Upon motion by the attorneys for plaintiffs the verdicts were set aside and new trials were ordered limited to the issue of damages. The record as a whole indicates that the verdicts were compromises and that the new trials should extend to all issues in the actions. The accident which gave rise to the actions occurred on a snowy day when a truck operated by defendant Martin in the course of his employment struck the injured plaintiff and deceased as they were standing at the rear of a vehicle which they had just extricated from a snowbank. There was testimony that visibility was poor but Martin stated that he had been able to see 70 to 90 feet ahead until immediately prior to the collision when a gust of wind, of greater intensity than any which had preceded it, blew snow in front of him, blinding his vision. Plaintiff Seymour confirmed the sudden squall. In these circumstances, which would have justified a charge to the jury on the subject of emergency, a sharp issue of liability was presented. The fact that the verdicts were returned by a vote of 10 to 2 and awarded only special damages in actions in which plaintiffs, if they recovered at all, were entitled to more substantial awards, suggests that, as in Wiegand v. Fee Bros. Co. ( 73 App. Div. 139) "the rights of the defendant were bargained away upon the main issue whether it was negligent or not, in consideration of an understanding that it should not be beaten in too large an amount" (p. 142). A new trial on the issue of liability as well as damages is therefore required. ( Lallo v. Grant Co., 31 A.D.2d 941.) With regard to the evidentiary rulings challenged by plaintiff Blackwelder, questions excluded by the trial court relating to the witness' friendship with deceased's father, to the deceased's uncle's position, to members of deceased's family other than his parents, to the hierarchy of the Episcopal church, and to a letter sent out by deceased's fraternity had no bearing on damages recoverable in the action and were properly excluded. Hearsay statements by deceased and photographs prior to one received in evidence were also propely excluded. In offering a portion of the Statistical Abstract of the United States pursuant to CPLR 4540 plaintiff failed to provide a satistician to classify deceased and indicate the relevancy of the statistics to him, and so this was also properly excluded. (See Speiser, Recovery for Wrongful Death, § 3:19, pp. 133-140.)