Donoho v. Metropolitan Street Railway Co.

30 Misc. 433, 62 N.Y.S. 523

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1900
• Status: Published

Opinion

Freedman, P. J.

The plaintiff in this action claims to have been injured by being thrown from a crowded car, belonging to the defendant, while standing upon the rear platform. Upon the trial the defendant attempted to show that, at the time the accident is alleged to have occurred, the plaintiff was in a state of intoxication. For that purpose, it called several witnesses who were present and saw the plaintiff, and who were asked whether they would characterize the acts of the plaintiff at the time of the accident as the acts of a man under the influence of intoxicating liquor,,or as those of a sober man. These several questions were excluded by the trial judge under objections taken thereto by the plaintiff’s counsel upon the ground that such witnesses were not shown to be experts, and to such exclusion the defendant’s counsel duly excepted. The rejection of such testimony was clearly error. Had it been shown that the plaintiff was intoxicated at the time he received the injuries he complained of, whether or not such intoxication contributed to the accident would have been a question of fact for the jury to determine, and the defendant had a right to show, if it was possible to do so, that such was his condition; neither does it require the testimony of an expert to give an opinion upon that question. The evidence of a "witness, in characterizing the action of a person as that of an intoxicated person, is admissible. People ex rel. Higgins v. Grant, 37 N. Y. St. Repr. 629; People v. Eastwood, 14 N. Y. 562.

The judgment must, therefore, be reversed.

MacLean, J., concurs; Leventritt, J., taking no part.

Judgment reversed and.new trial ordered, with costs to appellant to abide event.