Schomer v. Windsor Transportation Corp.

Full title: SIDNEY SCHOMER, Appellant, v. WINDSOR TRANSPORTATION CORP. and CONEY…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 28, 1940

260 App. Div. 887 (N.Y. App. Div. 1940)

Opinion

October 28, 1940.

Plaintiff, a passenger in a taxicab owned by defendant Windsor Transportation Corp., was injured when the cab collided with a truck of defendant Coney Island Dairy Products Corp. At the end of the case the complaint was dismissed as to the first named defendant because the uncontradicted evidence was that the cab was being operated without the permission of the owner. The jury rendered a verdict for defendant Coney Island Dairy Products Corp., and plaintiff appeals. Judgment affirmed, with costs. No opinion.

Lazansky, P.J., Carswell, Johnston and Taylor, JJ., concur; Close, J., concurs for affirmance of the judgment as to defendant Coney Island Dairy Products Corp., but as to defendant Windsor Transportation Corp. dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum:

The jury might have found that the testimony of Acierno was discredited by the testimony of Latz and consequently, under the particular circumstances presented here, there was a question of fact for the jury to pass on. In my opinion the testimony of Acierno was open to a reasonable doubt as to its accuracy and truthfulness, and the court erred in holding as a matter of law that his testimony overcame the presumption created by section 59 Veh. Traf. of the Vehicle and Traffic Law.