Opinion
June 15, 1967
Judgment unanimously reversed on the facts and the law and complaint dismissed as to defendants Atlas Fuel Oil Company and Enrico Amato with one bill of $50 costs and disbursements to such defendants; judgment unanimously reversed on the facts and a new trial ordered on the question of damages only as against defendants City of New York and William McGuire, with $50 costs and disbursements, unless plaintiffs stipulate to reduce the verdict to the sum of $12,000 and interest, in which event judgment unanimously affirmed, without costs and without disbursements. This is an action for the wrongful death of a four-year-old infant. The accident occurred when a city truck pulled into the wrong lane to get around the truck of defendant Atlas and struck the deceased. While the Atlas truck did partially block the highway, it did so only momentarily while the driver inquired as to directions from another driver. The resulting incumbrance did not constitute negligence in that it did not require other users of the highway to go into a place of danger ( Maloney v. Howard Johnson, Inc., 5 A.D.2d 1015). As regards the city, we find the verdict to be excessive. There is nothing in the record on which damages could be based other than the apparent good health of the infant. The verdict is far in excess of what is usually considered fair compensation and the proposed reduction represents what is, in our opinion, a generous award. Settle order on notice.
Concur — Eager, J.P., Steuer, Tilzer, McNally and McGivern, JJ.