Carroll v. Carlo Transportation Co.

Appeal by -defendant from a judgment in favor of the plaintiff in a negligence action for the sum of $25,177.03, and from the order denying defendant’s motion for a new trial. The case was tried before a jury in the Supreme Court, Rensselaer County. The accident happened on a street known as Broadway in the city of Albany, on November 14, 1945, about 1:30 in the morning. Plaintiff was driving his ear in a southerly direction and the defendant’s tractor-trailer combination was proceeding northerly. The two vehicles collided and plaintiff was seriously injured. Plaintiff claimed that defendant’s driver turned the tractor to his left just before the collision. Defendant’s driver claimed that plaintiff turned his car to cross the street when the vehicles were about 300 feet apart. There was independent proof to indicate that the collision occurred on plaintiff’s side of the street. No point was made as to the size of the verdict, or as to the Trial Judge’s charge. Appellant argues that the verdict as to negligence and contributory negligence is against the weight of evidence, but we think that fair questions of fact were raised for the jury. Appellant also argues that a statement, said to have been made by defendant’s driver to a third person, that he was asleep at the time of the accident, was erroneously admitted. The alleged statement was not offered or received as an admission against the defendant but solely on the issue of the driver’s credibility, and related to the manner in which the accident happened. As such it was proper (Kay v. Metropolitan St. By. Go., 163 N. Y. 447, 450). The exceptions taken to statements said to have been made by plaintiff’s counsel in his summation present no grounds for reversal. The summation was not taken by the stenographer, nor was any request made to the trial court to correct or to instruct the jury with regard to the alleged misstatements. Judgment and order unanimously affirmed, with costs. Presen* —• Foster, P. J., Heffeman, Brewster, Bergan and Coon, JJ.