
    Alfred Zimmermann, as Administrator, etc., of Harry Berlit, Deceased, Appellant, v. Emanuel S. Ullmann, Respondent.
    First Department,
    July 10, 1916.
    Motor vehicles — negligence — collision between motorcycle and automobile — erroneous charge as to burden of proof of contributory negligence — Code Civil Procedure, section 841-b, construed — evidence.
    In an action to recover damages for the death of plaintiff’s intestate as the result of a collision between defendant’s automobile and a motorcycle driven by the deceased it was reversible error for the court to instruct the jury that the plaintiff was bound to allege and prove absence of contributory negligence. This because the trial was held after section 841-b of the Code of Civil Procedure took effect, although the accident happened prior to said date.
    On cross-examination of defendant’s chauffeur, who had given testimony tending to disprove his negligence in the operation of the ear, it was competent to ask him if when he saw one M. the day after the accident he did not ask him to be lenient on account of his causing the accident, as such question indicated a purpose to lay a foundation for contradicting the witness through said M.
    Testimony by a witness of the defendant that after looking at the front wheel of the deceased’s machine it looked as if he had lost control of it was merely a conclusion and inadmissible to prove contributory negligence.
    Appeal by the plaintiff, Alfred Zimmermann, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of November, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of November, 1914, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Daniel W. Blumenthal, for the appellant.
    
      O. M. Quackenbush, for the respondent.
   Davis, J.:

This action was brought to recover damages for the death of Harry Berlit as the result of a collision between defendant’s automobile and a motor cycle driven by the deceased. The jury rendered a verdict in favor of the defendant.

The accident occurred in the afternoon of October 5, 1912, on the west drive of Central Park at the point of intersection of the west drive with the road leading out of the west drive to the Eighty-fifth street gate. The west drive runs about north and south and the intersecting road about northwest and southeast, the two roadways intersecting at an acute angle. The automobile was going north in charge of defendant’s chauffeur Eoss. The motor cycle driven by the deceased was going south on the proper side of the road. The car and the motor cycle came into collision at the place where the two roadways met. The defendant claims that just previous to the accident the automobile was going north at the rate of eight miles an hour; that a short distance south of the junction of the two roadways Eoss, the defendant’s chauffeur, drove his automobile in a straight line and in a direction to enable him to go into the road leading to the Eighty-fifth street gate; that while driving in this manner Eoss saw the motor cycle with Berlit driving it coming south down the west drive at about twenty-five miles an hour; that Eoss saw deceased for about three or four seconds, and put his right hand out of the window of his limousine as a signal to deceased, and that then the accident happened, and that the motor cycle ran into the hub of the right front wheel at an angle. Berlit was thrown against the side of the automobile and sustained injuries from which he died. The defendant also claims that the deceased had lost control of the motor cycle; that it was wobbling and that the deceased brought the accident upon himself, and that the defendant’s" chauffeur was in no way responsible for the collision.

On the other hand, the plaintiff claims that the defendant’s chauffeur while going at a high rate of speed on the wrong side of the road ran down the motor cycle driven by deceased; that the deceased was driving his machine slowly and carefully on the right side of the road, and that he was a skilled motor cyclist; that he was driving four or five feet from the edge of the- road and as he approached the road leading to the Eighty-fifth street gate, defendant’s automobile swung onto the wrong side of the road; that deceased tried to avoid the automobile by turning to the right, but was unable to do so because of the high rate of speed at which the automobile was going.

The issues of defendant’s negligence and the contributory 'negligence of the deceased were sharply contested at the trial. The court instructed the jury that the plaintiff was bound to establish not only the negligence of the defendant but his own freedom from contributory negligence. Proper exception was taken to this part of the charge.

This trial took place in October, 1914, about one year after section 841-b of the Code of Civil Procedure (as added by Laws of 1913, chap. 228) took effect. That section provides that, “On the trial of any action to recover damages for causing death the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant.” It has been held that this section applies even though the accident resulting in death and the beginning of the action took place before its enactment. (Gazzola v. O’Brien, 169 App. Div. 602; Sackheim v. Pigueron, 215 N. Y. 62.)

Therefore, the instruction to the jury that the plaintiff was bound to allege and prove absence of contributory negligence was erroneous and requires a reversal of this judgment.

The chauffeur Ross had given testimony tending to disprove the charge of negligence in his operation of his car. On cross-examination he was asked the following question: “Q. Now, when you went up and saw Molin the day after the accident, did you say to him, Please be lenient with me on account of my causing the accident, as I have a family to support ’ % ” The question was excluded under objection. We think the question should have been allowed as it indicated a purpose to lay a foundation for contradicting the witness on a material point, his own freedom from negligence, through the witness Molin. (Larkin v. Nassau Electric R. R. Co., 205 N. Y. 267.)

The defendant’s witness was allowed to testify that from looking at the front wheel of deceased’s machine it looked as if he had lost control of it. This is a pure conclusion of the witness and was inadmissible to prove contributory negligence.

Without passing upon other questions raised on this appeal by appellant we conclude that the errors referred to require a reversal of this judgment and order and the granting of a new trial, with costs to appellant to abide event.

Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  