Opinion
February 3, 1933.
Appeal from Supreme Court of New York County.
William Dike Reed of counsel [ John G. Reilly with him on the brief; Bernard J. Vincent, attorney], for the appellant.
Sidney J. Feltenstein of counsel [ Feltenstein Rosenstein, attorneys], for the respondent.
Present — FINCH, P.J., MARTIN, O'MALLEY, SHERMAN and TOWNLEY, JJ.
The verdict directed against appellant exonerated the owner of the taxicab which ran into appellant's car. Plaintiff was a guest in the car driven by appellant who, of course, is to be held to the exercise of only reasonable care. The evidence tends to indicate that the collision was caused primarily by the negligent conduct of the driver of the taxicab in causing the taxicab to strike appellant's car with great violence near its rear wheel. This collision occurred at the northwest corner of the intersecting streets after appellant's car had nearly crossed the thoroughfare upon which the taxicab was proceeding. Furthermore, the complaint in an action brought by the witness, Wolf Wolkenberg, against both defendants herein was erroneously allowed in evidence, for that witness had testified to no fact which the averments of that complaint tended to contradict, nor did that pleading constitute any evidence of appellant's negligence or go toward impeaching that witness or bear upon his credibility.
Plaintiff had held the driver of the colliding taxicab, a material witness, in the court room throughout the trial but had deliberately refrained from calling him until after defendant had rested. He was then permitted to examine this witness, not in rebuttal but upon matters as to which plaintiff had rested; thus the case was practically reopened. The trial court then apparently relied upon the testimony of that witness and gave insufficient consideration to the evidence which had been taken before defendant had rested. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Judgment reversed and a new trial ordered, with costs to appellant to abide the event.