Opinion
December 1, 1958
In an action by the operator of a taxicab against the owner and operator of another motor vehicle to recover damages for personal injuries alleged to have been received in a collision between the vehicles, the appeal is (1) from a judgment of the County Court, Westchester County, entered on a verdict dismissing the complaint, and (2) from an order of said court denying a motion to set aside the verdict and for a new trial. Judgment and order reversed and a new trial ordered, with costs to abide the event. In our opinion, it was error to exclude the testimony proffered by appellant as to the condition of respondents' vehicle and the photograph taken one-half hour after the accident away from the scene thereof. ( Simon v. Ora Realty Corp., 1 N.Y.2d 388; Scanna v. National Transp. Co., 262 App. Div. 853; McCulloch v. Dobson, 133 N.Y. 114.)
The jury found for respondents on ample evidence. We find no proof in the record that respondents' vehicle hit a rock which had been painted white, and to infer this from the white mark on the rod under the vehicle, shown in Exhibit 8 for identification which was excluded from evidence, would be pure speculation. In any event, the white marks on the bumper of the vehicle are shown on Exhibit 7 which was admitted to "indicate the location of the impact". Admission of the excluded photograph would, at most, have been cumulative.