Vitale v. Rock Asphalt & Construction Co.

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: The evidence presents questions of fact as to how the accident happened and as to the negligence of the defendant which were necessarily submitted to the jury. However, the credibility of the witnesses Ciambella and Hamilton on whose evidence the plaintiff’s case principally rests was seriously affected by contradictory statements of these witnesses. In this situation the questions for the jury to determine were close. When this is considered, the error in permitting the plaintiff to show that the witness Hamilton had long ago made a statement, evidently corroborative, [to] plaintiff’s former counsel becomes important. We conclude that the interests of justice considering the whole record require a new trial. All concur. (The judgment is for plaintiff in an automobile negligence action. The order denies a motion for a new trial.) Present — Sears, P. J., Crosby, Cunningham, Taylor and Dowling, JJ.