Grinthal v. Sharp

In a negligence action to recover damages for personal injury of a minor child and for loss of services and medical expenses of the child’s father, defendant appeals from a judgment of the Supreme Court, Kings County, entered February 17, 1969 in favor of plaintiffs, upon a jury verdict. Judgment reversed, on the law, and new trial granted in the interests of justice, with costs to abide the event. The findings of fact are affirmed. In our opinion this was a close ease on liability. There were no eyewitnesses to the actual impact. In the posture of the record, we are of the view that prejudicial error was committed by reception into evidence of the testimony of plaintiff’s sole, nontreating medical expert to the effect that the major injury sustained by the infant could not have been caused by impact with the bicycle operated by defendant at the speed subsequently testified to by him. Clearly, the speed of defendant’s bicycle before impact was crucial on the issue of negligence. In addition, there appears to be no proof or claim that the impact between the two bicycles caused the infant’s major injury. Brennan, Acting P. J., Rabin and Hopkins, JJ., concur; Martuscello and Kleinfeld, JJ., dissent and vote to affirm the judgment.