
    Denis Fitzgibbon, Appellant, v. Schenectady Railway Company, Respondent.
    Third Department,
    January 7, 1914.
    Railroad — negligence — injury to passenger by falling over fender — erroneous admission of evidence as to accident insurance policy held by plaintiff.
    Action by a passenger to recover for personal injuries sustained by falling over the fender of defendant’s car while alighting therefrom. Held, that although the evidence is sufficient to sustain the verdict of the jury, the judgment should be reversed because of the admission of evidence and comments of defendant’s counsel as to a.n insurance policy held by the plaintiff.
    Appeal by the plaintiff, Denis Fitzgibbon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 4th day of November, 1912, dismissing the complaint upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1912, denying plaintiff’s motion for a new trial made upon the minutes.
    
      Leary & Fullerton [Walter A. Fullerton of counsel], for the appellant.
    
      James McPhillips, for the respondent.
   Kellogg, J.:

The plaintiff, in alighting from the front platform of the defendant’s car at Saratoga, fell over the fender and was injured. The trial proceeded upon the theory that the injury was caused because the fender was not raised in due time, the defendant claiming that the plaintiff received his injury in trying to rush ahead of the motorman who was proceeding to raise the fender. We cannot say that the verdict is against the evidence. It seems probable, however, that the plaintiff was prejudiced before the jury by proof that he was insured against accidents. The plaintiff called as a witness the doctor who attended him and proved treatment from January fourth to the twelfth. On cross-examination it appeared that after the twelfth the doctor had not seen the plaintiff until the eighteenth, when he called at the office to have a certificate made out. The defendant asked about the certificate; the plaintiff objected and took exception. The answer showed that the certificate was to an insurance company, showing the nature of the accident, and the time of the treatment therefor. Then the defendant recalled the plaintiff and asked him if he had an insurance policy, the objection to which question was sustained, but in summing up to the jury the defendant’s counsel stated that the plaintiff was insured. I think these references to the insurance were improper and prejudicial. The jury may have thought that if the plaintiff was indemnified by an insurance company he should not recover from defendant.

The judgment and order are, therefore, reversed, and a new trial granted, with costs to the plaintiff to abide the event.

All concurred.

Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event.  