Opinion
July 2, 1940.
Present — Hill, P.J., Crapser, Bliss, Heffernan and Foster, JJ.
Appeal by each plaintiff from a judgment of no cause of action in favor of the defendants, and a joint appeal from the order denying plaintiffs' motion for a new trial. The jury also rendered a verdict of no cause of action as to defendants' counterclaim. The action was for alleged negligence, arising out of an automobile collision which occurred on a State highway between Rock Hill and Wurtsboro in Sullivan county, N Y Plaintiffs were traveling in a westerly direction, with the plaintiff Sam Babisch driving the car. Defendants' car, driven by a son of one of the defendants, was traveling behind the Babisch car and in the same direction. The accident happened after dark, some time between ten and eleven in the evening. The car of the plaintiffs was turned to the left to go into a dirt road and defendants' car collided with it. There was a sharp conflict in the testimony as to whether the plaintiff Babisch gave any signal of his intention to turn, and also as to how close the cars were to each other when he made the turn. The case was fairly submitted and no exceptions were taken to any rulings or to the charge. The only question of any importance on appeal is whether the evidence sustained a finding that the plaintiff Anna Babisch was guilty of contributory negligence. The jury must have so found since recovery was denied both as to plaintiffs' claim and as to defendants' counterclaim. This plaintiff saw the lights of defendants' car approaching from the rear. Apparently she uttered no warning to her husband and acquiesced in his turning movement, and if in connection with this movement the jury found that her husband gave no signal of his intention to turn, they may well have found negligence on her part. At least we cannot say to the contrary as a matter of law. Judgment and order unanimously affirmed, with costs.