Opinion
June, 1934.
Judgment reversed on the law and a new trial granted, costs to appellant to abide the event. The trial court erred in refusing to charge the jury, at the request of the attorney for the defendant, that "heedlessness" and "recklessness" under the Connecticut statute (Gen. Stat. Conn. [Revision 1930] § 1628) limiting the liability of the owner or operator of a motor vehicle to guests involved more than ordinary negligence. ( Ascher v. Friedman, Inc., 110 Conn. 1; Rindge v. Holbrook, 111 id. 72; Latham v. Hankey, 117 Conn. 5; 166 A. 400; People v. Grogan, 260 N.Y. 138; People v. Angelo, 246 id. 451.) It was also error to exclude the motor vehicle accident report made by the defendant immediately following the accident when offered in redirect examination to confirm defendant's testimony after it had been assailed as a recent fabrication. ( Robb v. Hackley Welton, 23 Wend. 50; Gilbert v. Sage, 57 N.Y. 639; Matter of Hesdra, 119 id. 615; People v. Katz, 209 id. 311, 337-340; People v. Racciatti, 225 App. Div. 284; Ferris v. Sterling, 214 N.Y. 249. ) On the trial the court left to the jury the question whether contribution by the plaintiff to the expenses of the operation of the car, such as gas, oil and garage charges, constituted payment for transportation within the meaning of the Connecticut statute. Although the point was neither raised at the trial nor argued in this court, we are of opinion that, as a matter of law, such contribution does not constitute payment within the meaning of that statute. (See Master v. Horowitz, 237 App. Div. 237.) Lazansky, P.J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.