Opinion
March 1, 1971
In consolidated negligence actions to recover damages for personal injuries, (1) defendant Sharon Excavating Co., Inc. appeals from so much of an order of the Supreme Court, Kings County, dated January 28, 1969, as, in Action No. 1, upon plaintiff Grassie's motion, set aside a jury verdict of $15,000 in favor of said plaintiff against Sharon as inadequate, unless Sharon would stipulate to increase the verdict to $35,000, and, in the event of Sharon's failure to so stipulate, ordered a new trial between said parties for an assessment of damages only; and (2) George Brown as a defendant in Action No. 1 and as plaintiff in Action No. 2 appeals, as limited by his briefs, from the remainder of said order, i.e., so much thereof as (a) in Action No. 1, upon plaintiff Grassie's motion, set aside the jury verdict against plaintiff Grassie and in favor of defendant Brown, directed a verdict in favor of Grassie against Brown, and ordered a new trial between said parties for an assessment of damages only, unless Brown would join in a stipulation with defendant Sharon fixing Grassie's damages against both said defendants at $35,000, and (b) in Action No. 2, upon defendant Sharon's motion, set aside the jury verdict in favor of plaintiff Brown against Sharon, dismissed Brown's complaint on the merits and severed the action. Order reversed, on the law, motions of plaintiff Grassie and defendant Sharon granted only to the extent of setting aside the verdict as to all the parties to these appeals and granting a new trial between all said parties, with costs to abide the event. We have considered the questions of fact and have determined that we would not grant a new trial upon those questions. Plaintiff Grassie was a passenger in an automobile owned and operated by George Brown on the morning of January 18, 1964. An accident occurred near the intersection of West End Avenue and 93rd Street, Manhattan, involving Brown's car and a snow-removal truck owned by Sharon Excavating Co., Inc., and operated by one of its employees. Both Grassie and Brown contended that Sharon's truck was not illuminated and crossed over West End Avenue from the northbound lane, where it was originally situated, into the southbound lane in which Brown was traveling. Sharon contends that its truck was standing still on the west side of West End Avenue, facing north, with its headlights and taillights lit, when Brown's car, heading south, ran straight into it. Despite this conflicting testimony, the Trial Judge refused to admit an MV 104 report to the State Department of Motor Vehicles signed by Brown, in which he noted that Sharon's vehicle was stationary and not moving. The exclusion of this evidence was error, in view of its obvious materiality in affecting Brown's credibility and as an admission against interest ( Welde v. Wolfson, 32 A.D.2d 973). Moreover, it was error for the court to charge the jury that Grassie was free from contributory negligence as a matter of law. Grassie was a passenger in the vehicle driven by Brown and had looked out of the window at various intervals. At no time did he make any comment or suggestion concerning Brown's driving. Under the circumstances it was for the jury to determine, as a question of fact, whether Grassie had sustained his burden of proving his freedom from contributory negligence. The trial court further charged the jury that Brown had testified that Sharon's truck was not visible. The record indicates that Brown repeatedly testified that he could and did see Sharon's vehicle continuously for about two blocks prior to and up to the collision and did not decrease his speed. Consequently, the charge could only have confused the jury on the question of visibility of the snow truck, which could have been an important factor in the jury's determination. Munder, Acting P.J., Martuscello, Latham, Shapiro and Benjamin, JJ., concur.