(DOWNLOAD) "Robin Dugan v. Jack Dieber" by Supreme Court of New York # Book PDF Kindle ePub Free
eBook details
- Title: Robin Dugan v. Jack Dieber
- Author : Supreme Court of New York
- Release Date : January 18, 1969
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
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[32 A.D.2d 815 Page 815] In our opinion, the infant plaintiff having been injured while in a roadway in 1959, it was error to admit into evidence
a photograph of the street to show parking conditions at the time of the accident, when the photograph depicted the street
some years later when private dwellings separated by driveways had been replaced by apartment houses. This picture should
not have been received in evidence to show the parking situation, since the trial court thereby foreclosed plaintiffs' attorney
from establishing that the automobiles were not as close to each other as indicated in the picture, because of the presence
of driveways on the right-hand side at the time of the accident which were not shown in the picture. Defendant's contention
was that the child ran between parked cars from the right side of the roadway. If the cars were as close to each other as
shown in the picture it would tend to support defendant's contention that he could not have seen the child in time to avoid
the accident. On the other hand, if the cars were not as close to each other on the right-hand side of the street as was shown
in the exhibit, then this would bear on the question of whether or not defendant should have seen the child much sooner than
he did had he been exercising reasonable care. Accordingly, the admission of the photograph was highly prejudicial. The court
also erred when it allowed in evidence the statement of Sally Smith, without instructing the jury as to its effect, particularly
the lack of probative value. Since Smith said she did not see the accident, defendant had the right to confront her with her
statement indicating otherwise. When she was shown her statement, she said it did not refresh her recollection; and on redirect
examination by plaintiffs' counsel she still insisted that she did not witness the accident notwithstanding what was contained
in her statement. Although the court remarked cursorily, "I am taking it for the purposes of credibility", that statement
would be meaningless to the average juror and, therefore, the court should have instructed the jury as to the effect of the
statement, namely, that it was received only for the purpose of impeaching her credibility and that it had no probative value
as to the happening of the accident. The trial court charged that the only evidence in the case on speed was that defendant
was traveling at about [32 A.D.2d 815 Page 81615]