Kronenberg v. City of New York 263 A.D. 1000

Action by plaintiff wife to recover damages for personal injuries and by plaintiff husband for loss of services and property damage sustained when the automobile, operated by plaintiff husband and in which plaintiff wife was a passenger, collided at night with an alleged unlighted stanchion erected and controlled by defendant City of New York as a part of a safety island for trolley car passengers. Judgment dismissing the complaint on the merits affirmed, with costs. The verdict in favor of defendant was not against the weight of the credible evidence. The credibility of one of plaintiff’s witnesses, which was attacked by the erroneous admission of certain testimony, did not become a material issue in respect to the issues upon which the verdict was founded, and the plaintiffs were not prejudiced nor was the verdict affected by the error in the admission of such testimony. Hagarty, Carswell, Johnston and Close, JJ., concur; Taylor, *1001J., dissents and votes to reverse the judgment on the law and the facts and to grant a new trial, with the following memorandum: There was clear error in the admission of Dr. Ohly’s testimony (fols. 886 et seq.) as to discipline inflicted upon Dr. Landesberg, who, to be sure, testified for plaintiffs only in that phase of the case relating to damages. That objectionable testimony related only to a collateral issue. Trial lawyers know, however, as a practical matter, that the admission of such evidence gives to the jury an adverse slant, as far as a plaintiff is concerned, on all the issues, is harmful to the plaintiff, and is calculated to aid defendant to obtain a verdict. Under the circumstances, I am of opinion that a new trial should be granted because of the error indicated, and in the interest of substantial justice.