May 4, 1927.
Appeal from Supreme Court of Oneida County.
Joseph A. Page [ Michael J. Larkin of counsel], for the appellant.
Nottingham, Clymer, Smith Kingsley [ Jesse E. Kingsley of counsel], for the respondent.
The action is for damages for injury to person and property through a collision between automobiles owned by plaintiff and defendant. The jury's verdict was no cause of action.
Five witnesses were sworn in behalf of plaintiff, who were either drivers or passengers in the three automobiles involved in the mishap; and the defendant was the only eyewitness sworn in his own behalf. The testimony of all these witnesses, taken in connection with the conceded facts as to the points of contact of the two colliding automobiles and giving full credence to defendant's story as to the location of the automobiles immediately after the collision, leads us to the conclusion that the verdict was contrary to the weight of the evidence as to the care shown by both plaintiff and defendant. Added to this, the trial court erred in prohibiting witnesses who observed the defendant immediately after the collision from testifying categorically that defendant was intoxicated. ( Felska v. N.Y.C.R.R. Co., 152 N.Y. 339; People v. Gaynor, 33 App. Div. 98. )
The judgment appealed from should be reversed on the law and facts and a new trial granted, with costs to appellant to abide the event.
All concur. Present — HUBBS, P.J., SEARS, CROUCH, TAYLOR and SAWYER, JJ.
Judgment and order reversed on the law and facts and a new trial granted, with costs to appellant to abide event.