Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Herlihy, Reynolds and Taylor, JJ.
Appeal from a judgment of the Supreme Court, Schenectady County, after trial by jury in favor of respondents and from an order denying appellant's motion to set aside the verdicts and for a new trial. The actions here involved stem from a collision on August 27, 1956 between an automobile owned by respondent Grace H. Smith, and operated by her brother, respondent Francis E. Smith, and a tow truck owned by appellant and driven by one Alvin Burch on Bruckner Boulevard in The Bronx. Respondents' version of the accident is that while proceeding along Bruckner Boulevard at approximately 35 miles per hour Burch presumably in an attempt to get off at an exit which he had passed, backed into respondent's car. Appellant's position at the trial was that respondent's car had collided with his truck while the latter was slowing prior to turning into the exit and that in any event the manner in which Francis Smith was operating respondent's vehicle was the proximate cause of the accident. Thus the jury was presented with diametrically opposed versions as to how the accident occurred. The jury accepted respondents' version of the accident, but appellant contends that its verdicts are against the weight of the credible evidence. We cannot agree. It is well established that where a motion is made that a jury's verdict is against the weight of the evidence "a court will not interfere unless it can see that no reasonable man would solve the litigation in the way the jury has chosen to do." ( Rapant v. Ogsbury, 279 App. Div. 298, 299.) The application of this rule is necessarily dependent on the facts in the case at hand. On the instant record where we have a plain factual dispute we cannot hold that the jury had to accept appellant's version of the accident in deference to respondents'. Appellant also contends that the damages in the sum of $10,000 awarded to Grace H. Smith were excessive. The main tenor of appellant's argument is that he is being assessed for injuries which were the result of a prior injury sustained just 10 days prior to the accident in question. However, the record reveals expert testimony to the effect that as a result of the accident in question the prior fracture was markedly aggravated, that more extended hospitalization was required, and that there was a further increase in the depression of the outer table of the tibia to which 20% of her total disability could be ascribed. In addition Grace H. Smith suffered special damages in excess of $5,000, a substantial portion of which is attributable to this accident. Considering the medical testimony, the special damages involved and the pain and suffering concomitant with the injuries suffered we do not find the verdict excessive. Judgment and order unanimously affirmed, with costs.