Hartley v. Szadkowski
| Decision Date | 21 April 1969 |
| Citation | 300 N.Y.S.2d 82,32 A.D.2d 550 |
| Parties | James HARTLEY, Appellant, v. Theodore C. SZADKOWSKI, Sr., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Dorfman & Quient, Glen Cove, for plaintiff-appellant; Joseph T. Mirabel, Huntington, of counsel.
Bivin & Welch, New York City, for defendants-respondents; William A. Scorzari, Huntington, of counsel.
Before CHRIST, Acting P.J., and BRENNAN, RABIN, BENJAMIN and MARTUSCELLO, JJ.
MEMORANDUM BY THE COURT.
Appeal by plaintiff from a judgment of the Supreme Court, Nassau County, entered July 19, 1967, in favor of defendants upon a jury verdict at a trial limited to the issues of liability.
Judgment reversed, on the law, and new trial granted, with costs to abide the event. The findings of fact below have not been affirmed.
This is an action by the operator of an automobile to recover damages for personal injuries sustained by him as a result of a collision with defendants' motor vehicle. Plaintiff produced two witnesses whose credibility was put in issue through searching cross-examination by defense counsel. Defendants rested at the end of plaintiff's case. The jury returned a verdict finding defendants guilty of negligence and plaintiff guilty of contributory negligence.
The trial court committed prejudicial error when it permitted defense counsel to cross-examine plaintiff concerning a prior accident (Grenadier v. Surface Transp. Corp. of N.Y., 271 App.Div. 460, 461, 66 N.Y.S.2d 130, 132, and cases cited therein). The erroneous ruling, over objection by plaintiff's counsel, affected a substantial right and under the circumstances of this case may not be disregarded under CPLR 2002 (see Lizzo v. O'Connor, 286 App.Div. 1021, 145 N.Y.S.2d 101). The evidence, if offered to show that plaintiff was generally careless, was incompetent (Warner v. New York Cent. R.R. Co., 44 N.Y. 465; Eppendorf v. Brooklyn City & Newtown R.R. Co., 69 N.Y. 195, 198). The trial court's ruling that this evidence was material and relevant clearly 'impaired the fairness of the trial and obscured the real issues' (Engel v. United Traction Co., 203 N.Y. 321, 325, 96 N.E. 731, 733). If the evidence were admissible at all, to establish plaintiff's knowledge of the alleged dangerous condition of the highway at the point of impact, it was incumbent upon defendants to prove that the prior accident occurred under similar conditions at approximately the same point (Veeldorano v. Union Ry. Co., 189 App.Div. 238, 178 N.Y.S. 576, 41 N.Y.Jur., Negligence, §§ 101--102; 1 Warren's Negligence, Ch. 9, §§ 7.01--7.02). Defendants failed to offer any proof other than the prior occurrence on the same road on the 'same curves'. Consequently, the testimony should have been stricken and the jury instructed that the testimony was not evidence of contributory negligence (see Robinson v. City of Albany, 14 A.D.2d 626, 218 N.Y.S.2d 421; cf. Nourse v. Welsh, 23 A.D.2d 618, 257 N.Y.S.2d 96).
The learned trial court further erred when it permitted, over objection, defense counsel to elicit on cross-examination of plaintiff an opinion that the highway was dangerous. Generally, ordinary witnesses, as...
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People v. Russell
...(see, Richardson, Evidence § 361 [Prince 10th ed.]; see also, People v. Malphurs, 111 A.D.2d 266, 489 N.Y.S.2d 102; Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82). However, "for at least the last century, lay persons have been permitted to give opinion evidence only when the subject......
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State v. Sartain, 7104
...222 Cal.App.2d 102, 34 Cal.Rptr. 754 (1963); In re Estate of Rowley, 257 Cal.App.2d 324, 65 Cal.Rptr. 139 (1968); Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (1969). However, the general rule may be relaxed when from the nature of the subject matter no better evidence can be obtai......
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Molinari v. Conforti & Eisele, Inc.
...the plaintiff is litigious and therefore unworthy of belief (Palmeri v. Manhattan Ry., 133 N.Y. 261, 30 N.E. 1001; Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82; Lizzo v. O'Connor, 286 App.Div. 1021, 145 N.Y.S.2d 101; Grenadier v. Surface Transportation Corp. of N.Y., 271 App.Div. 4......
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Zeleznik v. Jewish Chronic Disease Hospital
...trial, although no specific exception was taken to the charge (Carroll v. Harris, 23 A.D.2d 582, 256 N.Y.S.2d 715; Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82; 8 Carmody-Wait 2d, § 57:16, p. 302), and further because on at least five occasions during this very lengthy trial the ap......
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Witness examination
...was “plaintiff’s inattention” improperly invaded the jury’s province to determine ultimate factual issues. Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (2nd Dept. 1969). In a personal injury action stemming from an automobile accident, the trial court erred in allowing defense coun......
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Witness examination
...was “plaintif ’s inattention” improperly invaded the jury’s province to determine ultimate factual issues. Hartley v. Szadkowski , 32 A.D.2d 550, 300 N.Y.S.2d 82 (2nd Dept. 1969). In a personal injury action stemming from an automobile accident, the trial court erred in allowing defense cou......
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Witness examination
...was “plaintif ’s inattention” improperly invaded the jury’s province to determine ultimate factual issues. Hartley v. Szadkowski , 32 A.D.2d 550, 300 N.Y.S.2d 82 (2nd Dept. 1969). In a personal injury action stemming from an automobile accident, the trial court erred in allowing defense cou......
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Table of cases
...18:60 Hartford Accident and Indemnity Co. v. Village of Hempstead, 48 N.Y.2d 218, 422 N.Y.S.2d 47 (1979), § 3:130 Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (2d Dept. 1969), § 15:150 TABLE OF CASES — C-15 Harvey v. Mazal American Partners, 79 N.Y.2d 218, 581 N.Y.S.2d 639 (1992), ......