Crescenti v. Brooklyn Hospital ( 1946 )

In an action by plaintiff wife to recover damages for personal injuries and by her husband for expenses and loss, of services, etc., wherein plaintiff wife claimed that she was caused to slip and fall by reason of vomit on a step of a stairway in the defendant hospital down which she was proceeding after a. visit to her daughter, who was a patient therein, the plaintiff wife had' a verdict, upon which judgment was entered in her favor, and the defendant appeals. Judgment, as amended, insofar as appealed from, reversed on the law and the facts and a new trial’ granted, with costs to abide the event. The verdict of the jury is contrary to the weight of the credible evidence. There was also prejudicial error in the admission in evidence of the alleged conversation between the niece of plaintiff wife and a person claimed to have been dressed in a nurse’s white uniform when said plaintiff and her niece arrived on the second floor of the hospital to visit the daughter. Neither the identity of this person nor her relationship, if any, to the defendant was in any way established by the evidence. While the alleged statement of this person was struck out by the court at the close of plaintiffs’ case, it was during the absence of the jury, which was not instructed that it had been struck out, or that it should be disregarded. In view of the sharp conflict in the evidence as to the existence of the alleged vomit, it cannot be said that the error in the admission of this evidence was not prejudicial. Hagarty, Acting P. J., Carswell, Johnston, Aldrich and Nolan, JJ., concur.