Opinion
November 23, 1932.
Appeal from Supreme Court of Steuben County.
W. Earle Costello, for the appellant.
Wilbur F. Knapp, for the respondent.
That plaintiff sustained his burden of proving actionable negligence in defendant and his own freedom from contributory negligence is by no means free from doubt. In his summation to the jury counsel for plaintiff said this: "Bring in a verdict here, gentlemen, that is substantial in the amount of damage that you award this boy for his crippling for life. Don't be afraid. Take this last case, and when you go home feel satisfied that you have done justice and compensated this plaintiff substantially. We have asked for $10,000, and under this testimony we're entitled to every penny of it." Counsel also said this: "And I say to you, gentlemen, that the defendant won't be hurt a bit by it." The natural inference and in our opinion the intended inference to be drawn from these statements is that defendant was a man of wealth or was insured or both. In such circumstances we have no hesitation in deciding in the interest of justice and fairness that the judgment and order appealed from should be reversed upon the facts and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment and order reversed on the facts and new trial granted, with costs to the appellant to abide the event.