Holmes v. City of New York

Action by plaintiff’s intestate to recover damages for personal injuries resulting from a collision between a trolley ear operated by the defendant and an automobile in which plaintiff’s intestate was a passenger. The jury rendered a verdict in favor of the plaintiff’s intestate. From the judgment entered thereon the defendant appeals. Judgment reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event. Although liability was conceded, there was a serious question as to whether plaintiff’s intestate’s major injuries were caused by the accident. In our opinion the verdict was induced by the inflammatory summing up of plaintiff’s intestate’s counsel. It exceeded the bounds of fair argument, for counsel repeatedly sought to and undoubtedly did arouse the sympathies and prejudices of the jury. In addition, photographs of plaintiff’s intestate, taken many years before the accident, were improperly received. The interests of justice require a new trial. Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur. [See post, p. 878.]