APPEAL from a judgment of the Supreme Court in favor of defendant, entered April 22, 1954, in New York County, upon a verdict rendered at a Trial Term (GOLD, J.).
Benjamin H. Siff of counsel (Klein & Ruderman, attorneys), for appellant.
Samuel D. Johnson of counsel (Seymour B. Quel with him on the brief; Adrian P. Burke, Corporation Counsel, attorney), for respondent.
The plaintiff appeals from a judgment entered upon a jury verdict in favor of the defendant. The action was brought to recover damages for personal injuries alleged to
have been received while the plaintiff was in the process of boarding a bus owned and operated by the defendant. It appears to be undisputed that the bus was standing at its terminal point with the bus driver waiting for the scheduled departure time. The operator testified that when it was time to leave he closed the doors and drove away. He did not see the plaintiff and after driving twenty feet he heard a yell and brought the bus to a stop. He left the bus and found plaintiff lying in the street. The plaintiff, on the other hand, testified that as he was about to board the standing bus, the doors were closed and he was dragged some distance, receiving serious injuries that confined him to various hospitals and convalescent institutions for about fourteen months after the date of the accident. Plaintiff's expert witness testified that to have the unusual stripping or avulsion of practically the entire skin of plaintiff's right lower extremity 'he would have to be dragged to have the skin flayed open' and that condition would not result if plaintiff fell against the side of a moving bus and was then thrown under the rear wheel. Defendant city offered no proof whatever that plaintiff had hit the side of the bus and had been run over by the rear wheel.
The issues presented to the jury were largely centered about the conflicting testimony of these two witnesses. In this posture of the case we conclude that the admission of certain testimony upon the cross-examination of the plaintiff and the receipt in evidence of a statement made by a passenger in the bus so weighted the scales against the plaintiff that he was deprived of a fair trial.
The defense, to a substantial degree, was centered upon showing that plaintiff was intoxicated. Upon cross-examination the plaintiff stated he had 'a couple of drinks during the day'. A portion of the hospital record disclosed that when plaintiff was admitted '(t)here was an alcoholic odor on his breath.' The attending physician testified that the plaintiff had delirium tremens some hours after the accident. He expressed the opinion that this was the result of the shock of the accident and further stated that while such tremens were caused by prior habituation with alcohol, the conclusion could not be drawn that the plaintiff had been drunk at any specific time. Moreover, a policeman was permitted to testify, over the objection of plaintiff's counsel, that a man accompanying plaintiff prior to the accident 'was apparently intoxicated'.
It was against this evidentiary background that defense counsel was permitted over objection to cross-examine the plaintiff
in the following fashion: 'Q. Mr. McQuage, have you ever been convicted of intoxication, drunk and disorderly? * * *A. Convicted of being drunk? Q. Yes. A. Yes. Q. How many times, Mr. McQuage? * * * A. Oh, half a dozen different times in my life. * * * Q. When was the last conviction for drunkenness before the accident? [A.] I couldn't say exactly the date, but it had been two, two and a half, three years.'
It is the contention of the defendant that this interrogation of plaintiff on cross-examination was proper under the rule permitting a party to impeach the credibility of his opponent's witness by (a) questioning him concerning any immoral, vicious or criminal act of his life which may affect his character and tend to show that he is not worthy of belief or (b) showing that he had been convicted of a crime.
It is recognized that section 350 of the Civil Practice Act permits cross-examination of a witness as to his prior conviction of a crime for the purpose of affecting the weight of his testimony. Moreover, the cross-examiner is not concluded from further showing the conviction although it ...