Bacigalupo v. Metropolitan Street Railway Co.

The crucial question in the case was whether or not the defendant’s car was so far away when plaintiff’s servant drove upon the track that the motorman, if he had exercised reasonable diligence, could have prevented the collision. The plaintiff’s counsel was permitted, under objection and exception, to ask the driver the following question: “Was there plenty of opportunity for the electric car to stop before it struck you, and after you raised your hand?” This was clearly error. Dougherty v. Milliken, 163 N. Y. 527 , 57 N. E. 757 , 79 Am. St. Rep. 608 : Galligan v. Railway Co., 33 Misc. Rep. 87 , 67 N. Y. Supp. 180 . The very question upon which he was permitted to express an opinion was the turning point in the case, and upon the evidence was a close one. We cannot say that the judgment was not affected by the error. Judgment reversed, and new trial granted, with costs to appellant to abide event. All concur.