Capolupo v. Horton Wiping Materials Co. — 260 A.D. 575

Majority

p. 575

Virgilio Capolupo, Appellant, v. Horton Wiping Materials Co., Inc., and Horton R. Perry, Respondents.

First Department,

November 22, 1940.

Michael C. Bernstein of counsel [Bernard Tomson with him on the brief; Bernstein, Weiss & Tomson, attorneys], for the appellant.

H. H. Brown of counsel [E. C. Sherwood, attorney], for the respondents.

The plaintiff brought this action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant Horton R. Perry. The verdict of the jury in favor of the defendants is fully supported by the testimony in the record which fails to establish any negligence on the part of the individual defendant and fails to show that the plaintiff was free from contributory negligence.

On this appeal the sole question presented is whether the charge contained statements of an inflammatory and prejudicial nature and deprived the plaintiff of a fair and impartial trial. While

p. 576

the charge may be subject to some criticism, it is our opinion, however, that it is not prejudicial and does not warrant a new trial.

The judgment should be affirmed, with costs.

Present ■ — ■ Martin, P. J., O’Malley, Townley, Dore and Cohn, JJ.

Judgment unanimously affirmed, with costs.