Opinion
April 27, 1971
Appeal from a judgment of the Supreme Court, entered November 21, 1969 in Schenectady County, upon a verdict rendered at a Trial Term in favor of defendant, and from an order of said court which denied plaintiff's motion to set aside the verdict of no cause of action. On February 25, 1966 plaintiff, while operating a United Baking Company truck, was involved in a collision with an automobile owned and operated by defendant on Route 44 between Millbrook and Amenia, New York. Defendant's wife was a passenger in his automobile. As a result, the following actions were brought, in addition to the within action, and litigated in a joint trial which resulted in the following verdicts, to wit: (a) An action by United Baking Company, plaintiff's employer, for property damage to its truck against defendant herein, which resulted in a verdict of no cause of action. (b) Actions by defendant against plaintiff and United Baking Company for personal injuries and property damage to his automobile, which resulted in a verdict of no cause of action. (c) An action by defendant against plaintiff and United Baking Company for loss of his wife's services and medical expenses, which resulted in a verdict of no cause of action. (d) An action by defendant's wife and passenger in his automobile against plaintiff and United Baking Company for personal injuries, which resulted in a verdict in her favor in the amount of $4,000. Plaintiff on this appeal raises the issues that the verdict is contrary to the weight of the evidence, and that the jury did not properly deliberate the merits. Defendant, relying on Schwartz v. Public Administrator of County of Bronx ( 24 N.Y.2d 65), contends that since plaintiff has not appealed from the judgment in favor of the passenger, defendant's wife, that the determination in that action that plaintiff herein was negligent, should operate as an estoppel against him on this appeal for a new trial in the action in which he is a plaintiff. The Schwartz case held that a judgment in favor of a passenger in an action against the operators of two colliding vehicles gives rise to an estoppel which bars a subsequent action by one of the drivers against the other for his own personal injuries. On this appeal, however, plaintiff is not seeking a second trial to litigate an issue already decided against him, but rather a retrial of the issue on the ground that the determination was erroneous. The fact that on the trial of his cause of action as a plaintiff with others in a joint trial, it was determined that he was guilty of negligence as a defendant and has chosen not to appeal from the judgment in that action, should not bar him from challenging the verdict in the action in which he seeks damages as a plaintiff. In our opinion, the doctrine of estoppel does not apply to defeat plaintiff's appeal, and the Schwartz case is not controlling. Nevertheless, the record amply supports the jury's verdict of no cause of action in the present action, and should be affirmed. Appellant's further contention that the jury did not properly deliberate the merits is insubstantial. Judgment and order affirmed, with costs. Reynolds, J.P., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.