Dugan v. Dieber
| Decision Date | 18 June 1969 |
| Citation | 302 N.Y.S.2d 423,32 A.D.2d 815 |
| Parties | Robin DUGAN, an infant, etc., et al., Appellants, v. Jack DIEBER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Mollie Dugan, Brooklyn, Newmark & Newmark, Eileen Newmark, East Northport, for plaintiffs-appellants.
Daniel J. Coughlin, New York City, for defendant-respondent; Thomas Grimes, New York City, of counsel.
Before RABIN, Acting P.J., and BENJAMIN, MUNDER, MARTUSCELLO and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, medical expenses, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered February 23, 1968 in favor of defendant, upon a jury verdict after trial of the issue of liability only.
Judgment reversed, on the law and in the interests of justice, and new trial granted on the issue of liability only, with costs to abide the event. The findings of fact have not been affirmed.
In our opinion, the infant plaintiff having been injured while in a roadway in 1959, it was error to admit into evidence a photograph of the street to show parking conditions at the time of the accident, when the photograph depicted the street some years later when private dwellings separated by driveways had been replaced by apartment houses. This picture should not have been received in evidence show the parking situation, since the trial court thereby foreclosed plaintiffs' attorney from establishing that the automobiles were not as close to each other as indicated in the picture, because of the presence of driveways on the right-hand side at the time of the accident which were not shown in the picture. Defendant's contention was that the child ran between parked cars from the right side of the roadway. If the cars were as close to each other as shown in the picture it would tend to support defendant's contention that he could not have seen the child in time to avoid the accident. On the other hand, if the cars were not as close to each other on the right-hand side of the street as was shown in the exhibit, then this would bear on the question of whether or not defendant should have seen the child much sooner than he did had he been exercising reasonable care. Accordingly, the admission of the photograph was highly prejudicial.
The court also erred when it allowed in evidence the statement of Sally Smith, without instructing the jury as to its effect, particularly the lack of probative value. Since Smith said she did not see the accident, defendant had the right to confront her with her statement indicating otherwise. When she was shown her statement, she said it did not refresh her recollection; and on redirect examination by plaintiffs' counsel she still insisted that she did not witness the accident notwithstanding what was contained in her statement. Although the court remarked cursorily, 'I am taking it for the purposes of credibility,' that statement would be meaningless to the average juror and, therefore, the court should have instructed the jury as to the effect of the statement, namely, that it was received only for the purpose of impeaching her credibility and that it had no probative vaue as to the happening of the accident.
The trial court charged that the only evidence in the case on speed was that defendant was traveling at about fifteen miles per hour and that evidence of 'Skid marks in and of itself is no indication of speed of vehicle.' In our opinion this was error. Evidence of skid marks is pertinent and admissible as bearing on the speed at which the automobile was being operated at the time of the accident (Saladow v. Keystone Transp., 241 App.Div. 161, 271 N.Y.S. 293).
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