Grandone v. Cosentino

Judgment of the Supreme Court, Kings County, as amended by an order of said court dated May 9, 1966, in favor of defendants upon a jury verdict after a trial solely on the issues of liability, affirmed, without costs. No opinion. Appeal from an order of the same court, dated March 16, 1966, which denied plaintiffs’ motion to set aside the verdict and for a new trial, dismissed, without costs. No appeal lies from an order denying a motion for a new trial, made on the trial minutes. Brennan, Rabin and Munder, JJ., concur; Christ, Acting P. J., and Hopkins, J., concur in the dismissal of the appeal from the order, but dissent from the affirmance of the judgment and vote to reverse the judgment and grant a new trial, with the following memorandum : The trial court committed error in the following respects: (1) refusing to allow the introduction into evidence of the infant plaintiff’s hospital record, since the extent of his injuries had an important bearing on the issue of liability, there being a sharp dispute of fact as to whether defendants’ car was moving at the time of the accident; (2) after charging the jury that violation of certain statutes constituted some evidence of negligence, failing to add the instruction that the infant could not be charged with a violation thereof unless he had the mental capacity to understand the statutes’ meaning and comply therewith (Hicks v. Demascole, 25 A D 2d 487; Van v. Clayburn, 21 A D 2d 144; Chandler v. Keene, 5 A D 2d 42); and (3) refusing to charge, as requested, section 151 of the New York City Traffic Regulations to the effect that a driver must sound his horn to warn another person of danger.