Opinion
December 17, 1970
Order, Supreme Court, Bronx County, entered on April 23, 1970, directing a new trial unless the plaintiff stipulates to a reduction of the jury verdict from $200,000 to $75,000, modified, on the law and the facts, to the extent that a new trial is directed unless the plaintiff-appellant-respondent, within 20 days of service upon her by defendant-respondent-appellant of a copy of this order, consents to a reduction of the jury verdict to the sum of $125,000, in which event judgment may be entered for that amount; and otherwise affirmed, without costs and without disbursements. In our view, the sum of $75,000 is mathematically irreconcilable with the reasonable damages of the plaintiff; the sum of $125,000 is more in accord with the actual monetary loss reasonably referable to the widow's lifetime. Nor are we overlooking the claimed errors; but this being a death action, we believe there was a sufficiency of evidence to uphold the liability verdict within the Noseworthy rule. Passing errors there may have been, but they were adequately rectified by an experienced Trial Justice, prejudiced no substantial right of the defendant (CPLR 2002; 2A Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 2002.02, 2002.03) and certainly do not warrant another lengthy trial, which would not now be possible until the year 1971, at which time six years would have passed since the accident.
We dissent in that we would modify to direct a new trial, unconditionally, on all issues. Eliciting from the State Trooper, over objection, that he had investigated other fatalities at the crossing here involved without first showing that the circumstances attending such accidents were sufficiently similar to prevailing relevant conditions, as determined by the issues, was prejudicial error ( Kaplan v. City of New York, 6 A.D.2d 489, 491). Requisite proof of similar conditions must be preliminarily established before proof of prior accidents is properly admissible. The single fact of prior fatalities could so impress the jury that negligence as a fact, finding proximate cause for responsibility thereof, would be overlooked. Moreover, it was within the province of the jury to determine if the speed of the train was excessive under the facts and circumstances disclosed by the record. The expressed opinion of the expert that the train was operating too fast was unnecessary, invaded that province, and cannot be regarded as harmless error because the question of liability was a close one, and the testimony of an experienced engineer from a different or competing railroad was obviously prejudicial.