Jean Bishin v. New York Central Railroad Company

A new trial is required in the interests of justice because of the cumulative effect of the numerous prejudicial remarks in the plaintiffs' counsel's summation and in the Trial Judge's charge to the jury. Repeated allusions to defendant's deliberate lack of candor, its failure to call witnesses and its possible purchase of testimony may well have diverted the jury's consideration from the proper issues in the case and may have substantially influenced or may have been determinative of the outcome. Such conduct was clearly prejudicial and cannot be countenanced (Kohlmann v. City of New York, 8 A.D.2d 598; Cohen v. Covelli, 276 App. Div. 375; Nicholas v. Rosenthal, 283 App. Div. 9; Milio v. Railway Motor Trucking Co., 257 App. Div. 640). Exceptions were duly taken to the Trial Judge's charge on the ground of prejudice. It was also error for the jury under the charge to consider only the life expectancy of the decedent, Judith Bishin, without taking into account the life expectancies of the surviving next of kin, her parents, when considering the measure of damages in the wrongful death action. Finally, it was error to exclude an employee's report of the railroad grade crossing accident solely on the ground that it was self-serving. The statute (CPLR 4518; former