Aronson v. New York Taxicab Co. ( 1910 )

PAGE, J.

This action was brought to recover damages for personal injuries alleged to have been sustained by reason of the defendant’s taxicab coming into collision with a wagon driven by the plaintiff. Plaintiff alone testified to the fact that the defendant’s cab struck his wagon in the rear. On cross-examination, however, he admitted that he was looking forward andl did not see it, and said: “Í have no eyes behind.”

The testimony of the plaintiff’s witnesses is contradictory arid unsatisfactory. That, however, was for the jury to consider, and we do not decide the case on the weight to be given to the testimony. So far as the alleged injury is concerned, there was a jolt, plaintiff fell out of his wagon, and defendant’s cab was in the vicinity. Plaintiff testified that his arm and' side were hurt, and that he went to see a doctor, giving the address, but not the name. (His counsel, however, suggested the name.) The doctor was not called, nor was his absence explained. The injuries were not shown, nor was it shown that plaintiff was, because of those injuries, prevented from attending to his business for the three weeks he laid! off.' The jury, therefore, were allowed to speculate as to what caused the injury, and also as to the damages.

The defendant called no witnesses, but rested upon its motion to dismiss. Plaintiff’s counsel, in summing up to the jury, commented on the failure to call the defendant’s chauffeur. The court then said:

“Counsel has referred to the absence of the chauffeur. I instruct counsel to eliminate that statement, and direct the jury to disregard it.”

The plaintiff’s counsel—

“objects and takes an exception. Counsel asks the right to tell the jury they have a right to infer, from the absence of the chauffeur (his unexplained absence), that the testimony of the chauffeur, if he were here, would be unfavorable to the defendant.”

The deliberate repetition of this statement, after he- had been directed by the court to eliminate it from his remarks, should be condemned.

The judgment should be reversed, .andl a new trial ordered, with costs to appellant to a!bide the event. All concur.