Albert See and Carrie Guion, as Executors, etc., of Sylvester See, Deceased, Respondents, v. Isidor Wormser, Jr., Appellant

Albert See and Carrie Guion, as Executors, etc., of Sylvester See, Deceased, Respondents, v. Isidor Wormser, Jr., Appellant. Second Department, December 30, 1908. Motor vehicle — negligence — evidence — former conviction for exceeding speed limit — character. Where the plaintiff in an action to recover for personal injuries caused by an automobile does not charge the defendant with exceeding the legal rate of speed, it is error to permit him to show that the defendant had been convicted of exceeding the speed limit on other occasions. Such evidence is incompetent to impeach the character of the defendant, as the crime is not one involving moral turpitude. Appeal by the defendant, Isidor Wormser, Jr., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 15th day of ¡November, 1907, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 29th day of, ¡November, 1907, denying the defendant’s motion for a new trial made upon the minutes. P. J. Rooney [ James J. Mahoney with him on the brief], for the appellant. Stephen Holden, Jr., for the respondents. [MAJORITY — Gaynor, J.:] Gaynor, J.: About 4:00 feet ahead of the defendant, and going in the same direction, was a horse and wagon with a man and three women in it, and ahead of them going in the same direction was another horse and wagon in which was. the deceased with some women. The engine of the defendant’s automobile was making considerable noise. The horse ahead pricked up his ears at it and was held back with difficulty by the driver. But the defendant kept coming up in the rear without slacking up. The woman arose and turned and cried out to the defendant in alarm and motioned him to stop. But he came right on, and when his automobile was within about two feet of the wagon the horse bolted, ran into the wagon ahead, and threw the deceased out. He died of the fall. The automobile was not stopped until after the collision, and it was then about 4 to 6 feet behind the point where the collision occurred. These were the facts that the jury presurnably'found in rendering a verdict for the plaintiff. There was no evidence or claim that the defendant was going at a faster rate of speed than that provided by the statute or any local ordinance. The negligence was not in going too fast, but that seeing the predicament those ahead were in with the frightened horse, he nevertheless came on and thereby caused the catastrophe. Hot content with this, the learned counsel for the plaintiff persisted in cross-examining the defendant in respect of whether he had ever been convicted of exceeding speed limits fixed by local ordinances in different places, and made him admit at least four such convictions, with the probability of there being still others if he could only recollect them. It may be that this evidence would have been competent on the defendant’s habit of excessive speed, and therefore on the probability of whether he was going at a reckless speed, if the question of his speed had been raised and litigated on the trial as causing the collision, and a fact to be found in order to determine the question of negligence (Wigmore on Ev. §§ 64, 97, 199, 376), which however we do not decide; but no such question was tried. The exceptions to the evidence were therefore good unless such evidence was competent to impeach the defendant by showing him to be of bad character. Ho authority is cited for so extreme a proposition. The commission of a crime is generally evidence affecting one’s moral character, although some crimes may be too trivial for that purpose (People v. Irving, 95 N. Y. 541). The violation of local ordinances is generally not a crime, but only a lesser offense which magistrates summarily deal with, and which do not imply any mortal turpitude (Steinert v. Sobey, 14 App. Div. 505). The judgment should be reversed. Woodward, Jerks, Hooker and Hiller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.