Opinion
January 20, 1972
Appeal from the Erie Trial Term.
Present — Marsh, J.P., Witmer, Moule, Cardamone and Henry, JJ.
Order unanimously reversed, without costs, and verdict reinstated. Memorandum: A clear issue of fact is presented as to the manner in which the accident resulting in injury to the plaintiff occurred. Defendant's credibility was for the jury to evaluate and his account of his actions would support a finding that, under all the circumstances of an emergency situation not of his own creation, he operated his vehicle with reasonable care. The jury could also have concluded that plaintiff did not exercise reasonable care for his own safety when he ventured into the street to unlock his car without making reasonable observation of oncoming traffic. "A verdict in favor of a defendant should not be set aside as against the weight of the credible evidence unless the preponderance in favor of the plaintiff was so great that the finding in favor of the defendant could not have been reached upon any fair interpretation of the evidence" ( Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, 544, affd. 9 N.Y.2d 829; and see Blunt v. Zinni, 32 A.D.2d 882, 883; Ryder v. Cue Car Rental, 32 A.D.2d 143, 148). The record demonstrates no prejudicial error in the conduct of the trial that could have influenced the jury's verdict of no cause of action.