Opinion
June 18, 1962
In a negligence action to recover damages for wrongful death and for conscious pain and suffering, defendants appeal from a judgment of the Supreme Court, Kings County, entered October 17, 1961 after trial upon a jury's verdict of $32,500 in favor of plaintiff, as administrator, for damages for wrongful death. The cause of action for conscious pain and suffering was dismissed at the close of the entire case; no appeal has been taken with respect to such dismissal. Judgment reversed on the law and the facts, and a new trial granted as to the cause of action for wrongful death, with costs to abide the event. Plaintiff's intestate, a boy 16 1/2 years of age, was killed when a motor scooter operated by him came into contact with an automobile owned by defendant Lena Lermsider and operated by defendant Malcolm Lermsider. In our opinion, the verdict, insofar as it imports a finding that decedent was free from contributory negligence, is against the weight of the credible evidence. In any event, a new trial would be granted in the interests of justice, in view of the extended participation of the Trial Justice in the questioning of witnesses (cf. Murray v. McLean Trucking Co., 5 A.D.2d 780) and in view of the inadequacy of the charge to the jury (cf. Molnar v. Slattery Contr. Co., 8 A.D.2d 95, 100). Beldock, P.J., Ughetta, Brennan, Rabin and Hopkins, JJ., concur.