Gibson v. Gunn

206 A.D. 464, 202 N.Y.S. 19, 1923 N.Y. App. Div. LEXIS 7245

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 1923
• Status: Published

Opinion

Per Curiam:

We think the introduction in evidence over defendant’s objections and exceptions of a moving picture of plaintiff’s performance in a vaudeville entertainment prior to the accident in which the injury was sustained, constituted reversible error. Aside from the fact that moving pictures present a fertile field for exaggeration of any emotion or action, and the absence of evidence as to how this particular motion picture film was prepared, we think the picture admitted in evidence brought before the jury irrelevant matter, hearsay and incompetent evidence, and tended to make a farce of the trial. The plaintiff’s ability as a vaudeville performer was not the issue, and his eccentric dancing, comic songs and the dialogue and remarks of his fellow-performers had no place in the trial in the Supreme Court of the State of the issues presented by the pleadings. The effect of this radical departure from the rules of evidence is found in the excessive verdict returned by the jury.

The judgment should be reversed upon the law and the facts, and a new trial granted, with costs to abide the event.

Kelly, P. J., Rich and Manning, JJ., concur; Kelby and Young, JJ., dissent, and vote to reverse, unless within twenty days plaintiff stipulate to reduce the amount of the verdict from $10,000 to $5,000; in which event the judgment, as so modified, and the order are affirmed, without costs.

Judgment and order reversed upon the law and the facts and new trial granted, with costs to abide the event.