Kowalczyk v. Krum

19 A.D.2d 803, 243 N.Y.S.2d 254, 1963 N.Y. App. Div. LEXIS 3178

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 1963
• Status: Published

Opinion

Judgment for defendant after trial in personal injury negligence action, entered on October 25, 1961, unanimously reversed, on the law and in the exercise of discretion, without costs, the verdict vacated and a new trial ordered. Defendant introduced evidence to support his contention that plaintiff sustained his injuries, at least in part, because he ran into the path of defendant’s automobile while suffering from the effects of intoxication. While on the evidence properly introduced in the case, defendant would be entitled to retain his verdict, the trial is tainted with unfairness because of the prejudicial errors in allowing the testimony concerning arrests and convictions for intoxication in past years. The errors were not sufficiently cured by belated instructions coming merely as an addendum to the court’s charge. (See McQuage v. City of New York, 285 App. Div. 249; cf. People v. Broivn, 2 A D 2d 202, 204.) Concur — Botein, P. J., Breitel, Rabin, Stevens and Eager, JJ.