The opinion of the court was delivered by: COOPER
This cause came on for trial February 21, 1967. By stipulation entered into by all the parties, the issue of liability was first submitted to the jury for determination. By agreement of defendants the claim over was reserved to the Court.
The jury on February 28, 1967 found against the Long Island Rail Road on liability and thereupon announced (by virtue of a similar stipulation) that the railroad was negligent; that proximate cause had been established; and that plaintiff was not contributorily negligent.
The second trial stage (damages) was heard by the same jury which on March 2, 1967 brought in a verdict in plaintiff's favor for $305,000.
Third parties plaintiff and defendant made separate motions (hereinafter dealt with) to set aside the verdict. Each motion is denied.
Plaintiff moves to amend the ad damnum clause from a demand of $250,000 to $305,000. Motion granted.
The third party plaintiff and third party defendant separately move to set aside the verdict contending:
(1) It is contrary to the weight of the evidence. This motion was denied in open court (Tr. p. 444); in any case there is ample evidence to support a finding that Finley negligently failed to obey plaintiff's signal and that this was the proximate cause of the resultant injury to plaintiff.
(2) The court erred in failing to declare a mistrial when plaintiff talked to Finley in the hall outside the courtroom, and further erred in failing to charge the jury on the impropriety of this conduct. We believe our rulings correct on this matter and adhere to our views as expressed in the transcript at p. 349.
(3) The court erred in refusing to admit into evidence a prior consistent statement (3d party defendant's exhibit k) to bolster the testimony of the witness Finley. Here too, we are not inclined to alter our earlier ruling. (Tr. pp. 346-48).
(4) Third party defendant contends that the court erred in denying it the right to cross examine the witness Chindamo as to a signed statement of the witness (defendant's exhibit i for identification). We believe correct our ruling at trial (Tr. p. 224). The interests of both defendants with respect to the contents of the statement were identical. Therefore, third party ...