Cutler v. Earl

Full title: JOHN CUTLER, Respondent, v. ERWIN EARL, Appellant

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: May 8, 1929

226 App. Div. 102 (N.Y. App. Div. 1929)

234 N.Y.S. 425

Opinion

May 8, 1929.

Appeal from Supreme Court of Oswego County.

Charles V. Byrne, for the appellant.

William K. Bentley [ Avery S. Wright of counsel], for the respondent.

All concur. Present — SEARS, P.J., CROUCH, TAYLOR, EDGCOMB and THOMPSON, JJ.

PER CURIAM.

Plaintiff, defendant and their wives were riding in an automobile owned by plaintiff. Defendant was driving, plaintiff being unable to do so. The automobile was driven over the brow of a hill and, in descending the slope beyond, skidded on the wet roadway, overturned, and plaintiff was injured. He brought this action, has recovered a verdict of $2,000, and defendant appeals.

Counsel for defendant — in his motions for a nonsuit, a dismissal, and a direction of a verdict — made the point that plaintiff and defendant were joint adventurers during the trip. Counsel then indicated that he might later raise legal questions as to joint adventure in requests to charge. At most the question of joint adventure was one of fact which might have been left to the jury, but was not. Appellant took no exception to this omission, and made no request to charge on the subject. Hence the question is not here, for it is not one of law under the testimony presented.

After the mishap a statement in writing concerning its details was concededly made by the plaintiff. Plaintiff was cross-examined on the trial as to the contents of this written statement, and denied the truth of portions of it which materially contradicted plaintiff's testimony on the trial as to the speed at which defendant was driving. Defendant offered the statement in evidence at the termination of the cross-examination of plaintiff and again at the end of his own case. The learned court sustained plaintiff's objection to the reception of the statement and defendant excepted. This was reversible error ( O'Connor v. International R. Co., 213 App. Div. 411), particularly since the correctness of the result reached by the jury is open to question.

The judgment and order should be reversed on the law and facts, and a new trial granted, with costs to appellant to abide the event.

PER CURIAM.

Judgment and order reversed on the law and facts, and a new trial granted, with costs to the appellant to abide the event.