Arroyo v. Judena Taxi, Inc.

20 A.D.2d 888, 248 N.Y.S.2d 952, 1964 N.Y. App. Div. LEXIS 4596

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1964
• Status: Published

Opinion

Judgment entered on October 17, 1963, in favor of .plaintiff in the sum of $4,723 in a personal injury action, unanimously reversed, on the law and on the facts, with costs to appellant, and a new trial directed on the ground the verdict is against the weight of the evidence on the basis of the physical facts as testified to by plaintiff and his brother. (Bottalico v. City of New York, 281 App. Div. 339, 341.) Since the case is to be retried, we advert to the prejudicial errors. Evidence of defendant’s failure to report the accident to the Hack Bureau is inadmissible. It is irrelevant on the issues involved and prejudicial. (Maher v. Colilli, 274 App. Div. 832.) The applicable legal principles were charged in the abstract. The charge omitted to state the factual contentions of the parties. In a closely contested trial, in order to enable the jury to pass on the factual issues, the charge should incorporate the factual contentions of the parties in respect of the legal principles charged. Where a charge is so inadequate as to preclude a fair consideration by the jury, the absence of proper exceptions does not preclude this court from ordering a new trial in any event. (Molnar v. Slattery Contr. Co., 8 A D 2d 95, 100.) Concur — Bofein, P. J., McNally, Stevens, Eager and Steuer, JJ.