Opinion
February 24, 1953.
Present — Peck, P.J., Dore, Cohn and Van Voorhis, JJ.
Improper reference to insurance by one of the plaintiffs and by his attorney doubtless influences the jury in reaching a verdict in plaintiffs' favor. Although the trial court fairly and adequately charged the jury on all issues, we think that the verdict arrived at was contrary to the credible evidence. The locations and positions of the automobiles after the accident, the nature and extent of the damage to these vehicles, and the several statements signed by plaintiff Saalfeld which were earlier prepared by him or at his instance, all contradict Saalfeld's testimony upon the witness stand, on which testimony alone defendant could have been found to have been guilty of negligence resulting in this accident. Defendant's version of the accident is upheld by the circumstantial evidence, as well as by the voluntary written statements made by plaintiff driver to his own workmen's compensation carrier, and to the State Commissioner of Motor Vehicles, immediately or within a few months following the accident, and several years before the trial. Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.