Majority
p. 401(160 App. Div. 66) FITZGIBBONS v. SCHENECTADY RY. CO. (Supreme Court, Appellate Division, Third Department. January 7, 1914.)
Headnote
Trial (§ 127*)—Misconduct of Counsel—Reference to Insurance. In an action for injuries to a street car passenger, plaintiff called Ms physician, who testified on cross-examination that plaintiff called at Ms office to have a certificate made out to be forwarded to an accident insurance company. An objection was sustained to the question, but defendant’s counsel in argument to the jury stated that plaintiff was insured. Held, that such references to insurance were improper and prejudicial.[Ed. Note.—For other cases, see Trial, Cent. Dig. § 275; Dec. Dig. § 127.*]
Appeal from Trial Term, Saratoga County.
Action by Denis Fitzgibbons against the Schenectady Railway' Company. From a judgment for defendant, and from an order denying plaintiff’s motion for a new trial on the minutes, he appeals. Reversed, and new trial granted.
Argued before SMITH, P. J„ and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.
Leary & Fullerton, of Saratoga Springs (Walter A. Fullerton, of Saratoga Springs, of counsel), for appellant.
James McPhillips, of Glens Falls, for respondent.
The plaintiff, in alighting from the front platform of the defendant’s car at Saratoga, fell over the fender and was injured. The trial proceeded upon the theory that the injury was caused because the fender was not raised in due time; the defendant claiming that the plaintiff received his injury in trying to rush ahead of the motorman, who was proceeding to raise the fender. We cannot say that the verdict is against the evidence. It seems probable, how
p. 402
ever, that the plaintiff was prejudiced beforé the jury by proof that he was insured' against accidents. The plaintiff called as a witness the doctor who attended him and proved treatment from January 4th to the 12th. On cross-examination it appeared that after the 12th the doctor had not seen the plaintiff until the 18th, when he called at the office to have a certificate made out. The defendant asked about the certificate; the plaintiff objected and took exception. The answer showed that the certificate was to an insurance company, showing the nature of the accident and the time of the treatment therefor. Then the defendant recalled the plaintiff and asked him if he had an insurance policy, the objection to which question was sustained, but in summing up to the jury the defendant’s counsel stated that the plaintiff was insured. I think these references to the insurance were improper and prejudicial. The jury may have thought that if the plaintiff was indemnified by an insurance company he should not recover from defendant.
The judgment and order are therefore reversed, and a new trial granted, with costs to the plaintiff to abide the event. All concur.