Castleberry v. Hudson Valley Asphalt Corp.
| Decision Date | 23 January 1978 |
| Parties | William CASTLEBERRY et al., Appellants-Respondents, v. HUDSON VALLEY ASPHALT CORP., Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Finkelstein, Mauriello, Kaplan & Levine, P. C., Newburgh (Sheila Callahan and Andrew M. Mauriello, Newburgh, of counsel), for appellants-respondents.
Levinson & Jenkins, Newburgh (Steven Di Joseph, Thomas R. Newman and Arthur N. Seiff, New York City, of counsel), for respondent-appellant.
Before MARTUSCELLO, J. P., and RABIN, MARGETT and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., the parties cross-appeal from a judgment of the Supreme Court, Orange County, entered June 23, 1977, which is in favor of (1) plaintiffs Castleberry upon a jury verdict, and (2) plaintiff United States of America, upon a jury verdict as reduced by the trial court in an order dated June 17, 1977.
Judgment reversed, on the law, and new trial granted, with costs to abide the event.
It was reversible error for the trial court to have permitted testimony that about 18 days prior to the accident, another individual had been injured as a result of his having slipped on the defendant's platform. On that date, unlike the day on which plaintiff William Castleberry was injured, it had been raining heavily, thus making the oil-soaked platform more slippery than usual. Thus, since the platform was not substantially in the same condition as on the date of the accident, the admission of such evidence constituted reversible error (see Richardson, Evidence (Prince, 10th ed.), § 196; see, also, Flansburg v. Town of Elbridge, 205 N.Y. 423, 98 N.E. 750).
Error was also committed by the court when it permitted plaintiffs' attorney to elicit that subsequent to the accident, the defendant had scraped the oil off the platform. Read in context, it appears that this line of questioning was not, as plaintiffs contend, simply intended to call to the jury's attention the fact that defendant's photographs were not fair and accurate representations of the condition of the platform on the day of the accident. The error was compounded by the court's failure to instruct the jury that the evidence had not been received as an admission of negligence or culpability and that no inference of negligence could be drawn therefrom (see Richardson, Evidence (Prince, 10th ed.), § 168).
Finally, it was error for the court to have...
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