Gionta v. Whyzmuzis

44 A.D.2d 850, 355 N.Y.S.2d 799, 1974 N.Y. App. Div. LEXIS 4909

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals, on the ground of inadequacy, from a judgment of the Supreme Court, Queens County, entered December 9, 1971, in her favor, upon a jury verdict of $1,250. Judgment reversed, on the law, and new trial granted, with costs to abide the event. No questions of fact have been considered. While driving across Throgg’s Neck Bridge to her place of employment in a Bronx hospital, plaintiff’s ear was struck in the rear by that of defendant Paul J. Whyzmuzis. Plaintiff continued on to the hospital, where she received medical attention for pains in the neck and back. Outpatient treatment continued for months thereafter, during which period she was attended by various doctors at the hospital. At the time of trial, defendants admitted liability and the court and jury proceeded to a contested assessment of damages. In its charge to the jury the trial court abandoned the role of arbiter and assumed that of advocate. In so doing it tipped the delicate balance so necessary to the preservation of the requirements of a fair trial. Where a Trial Judge indicates his opinion of the merits of one side of the ease, as the Trial Judge did here, a new trial is required in the interests of justice (Bishin v. New York Cent. R. R. Co., 20 A D 2d 921; Bromberg v. City of New York, 25 A D 2d 885). Gulotta, P. J., Martuscello, Latham, Shapiro and Cohalan, JJ., concur.