Opinion
January 21, 1938.
In an action by the plaintiff wife, an incompetent, to recover damages for personal injuries alleged to have been sustained as a result of defendant's negligence, and by the husband for medical expenses and loss of services, the jury found a verdict for defendant. Judgment affirmed, with costs. No opinion.
Hagarty, Carswell, Davis and Johnston, JJ., concur;
Defendant rested upon plaintiffs' proofs. These support the finding, implicit in the verdict, that the insanity of plaintiff Jennie Kelly did not result from her physical injuries, which were undisputed but for which no damages were awarded. In this phase, and in that which relates to the defendant's alleged liability, the verdict is against the weight of evidence. Further, that part of the charge which relates to the suggested "error of judgment" on the part of the defendant's motorman was error; there was no proof that he was confronted by any emergency. ( Van Ingen v. Jewish Hospital, 182 App. Div. 10; affd., 227 N.Y. 665.) The charge in this respect was not the subject of exception. Nevertheless ( Faichney v. Ketelsen, 250 App. Div. 868), because of this error and upon the preceding ground assigned, I vote for reversal and a new trial, required, in my opinion, in the interest of justice.