Opinion
March, 1907.
Present — Patterson, P.J., Ingraham, McLaughlin, Clarke and Scott, JJ. (Dissenting opinion by Clarke, J.)
Judgment and order affirmed, with costs. No opinion.
The plaintiff recovered a verdict of $25,000. The plaintiff was a woman. The physical disabilities for which she claimed damages were such as to especially excite the sympathies of a jury. They were a cancer of the breast, which had developed some eighteen months after the accident, neuresthenia and bladder trouble. She had suffered an amputation of the breast in an attempt to eradicate the cancer. Whether or not these ills were the direct and proximate result of the defendant's negligence was the seriously litigated question upon the trial. Under such circumstances, irrelevant matter, tending to prejudice or inflame a jury, was sure to be reflected in the size of the verdict. I think the judgment should be set aside because of an improper question asked by counsel for the plaintiff in a patent attempt to get before the jury the fact that the defendant was insured. The courts have so many times admonished counsel that such questions are highly improper, that in my opinion the time has come to enforce the admonitions by reversing a judgment when such questions have been asked. The bar will thus learn that a judgment is worthless if counsel refuses to heed the repeated warnings of the court. ( Wildrick v. Moore, 66 Hun, 630; Manigold v. Black River Traction Co., 81 App. Div. 381; Hoyt v. Davis Mfg. Co., 112 id. 755; Cosselmon v. Dunfee, 172 N.Y. 507; Loughlin v. Brassil, 187 id. 128.)