Lafargue

This action is one brought to recover damages for personal injuries alleged to have been sustained by plaintiff in a collision between a wagon driven by him and one of -defendant’s cars, said collision being alleged to have been due to the negligent operation of the ear by defendant’s motorman. There was a trial by jury, which rendered a verdict for plaintiff in the sum of two thousand dollars. Defendant appeals from the judgment entered on such verdict.

Upon all material issues, including that of contributory negligence, there was a substantial conflict in the evidence, and no claim is made that the evidence was insufficient as matter of law to sustain the verdict.

The claim apparently principally relied upon by learned counsel for appellant for a reversal is alleged misconduct on the part of plaintiff’s attorney during the trial, by reason of which, it is urged, the defendant’s case was prejudiced in the minds of the jurors. Many instances of such alleged misconduct were specified in the affidavits presented on motion for new trial.

Of these the most important is the matter relative to the discharge of plaintiff from St. Luke’s Hospital, after being there some six weeks,…

We dissent. It seems to us that an entirely false quantity was injected into the case by plaintiff’s counsel, over the repeated admonitions of the court, and that the false quantity so introduced was of a character so prejudicial to the defendant as to have prevented the jury from considering the case fairly upon its real merits. To sustain the verdict under these circumstances will, it seems to us, have' the effect of - encouraging similar conduct in other cases, when it should be discouraged strongly. Primarily the relief in such a case should be given by the trial judge by granting a new trial, and his right to do this should be exercised freely wherever he feels that the trial has not been fairly had. In the present case; it seems to us that the trial judge refrained from exercising this right in a case in which he should have done so. '

Rehearing denied.

Angellotti, C. J., Shaw, J., Lawlor, J., Wilbur, J., and Sloane, J., concurred.