Opinion
May 11, 1967
Determination of the Appellate Term reversing the judgment of the Civil Court, entered after the verdict of the jury in favor of the defendant, unanimously reversed, on the law and on the facts, with $50 costs and disbursements to the defendant-appellant, and the judgment of the Civil Court is reinstated. The accident, out of which this action arose, occurred when the defendant-appellant, while driving an automobile, made a left turn and struck a street divider. The plaintiff was a passenger in that car. Defendant claims that he struck the divider in order to avoid a collision with an oncoming car, and further maintains that he was properly in the intersection and had the right-of-way in making the left turn. The plaintiff on the other hand testified that the accident occurred because of the defendant's negligence and states she did not see any car approaching defendant as he was making his left turn. However, when she was confronted with a statement that she made to her doctor to the effect that the accident occurred when defendant tried to avoid a collision with another car, she admitted making the statement but she tried to explain it away. On these facts it would certainly appear that a question of fact was presented and that it was within the province of the jury to determine whether, in the circumstances, defendant was or was not negligent. The jury verdict being in favor of the defendant it "may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict for the defendant could not have been reached on any fair interpretation of the evidence." ( Marton v. McCasland, 16 A.D.2d 781, 782.) We cannot say that this case presents such a situation. The Appellate Term in reversing stated that the trial court's charge treated the question of negligence only in a general way, failing to specifically refer the definition of negligence to the particular facts of the case. It also held that the refusal by the trial court to grant plaintiff's request to charge constituted error. The only request to charge, by the plaintiff, was that "if the jury finds that the defendant was negligent in the slightest degree and they find the plaintiff was free from contributory negligence, and they find that the plaintiff was injured, that they must find for the plaintiff." The trial court was correct in declining to give the charge as requested. Such request was not accurate in that it did not make reference to the requirement that for liability to attach, the plaintiff's injuries must have resulted from the defendant's negligence. At any rate the charge adequately covered the subject matter of the request and was specifically related to facts presented. The court charged in the following manner: "The issues here are as to whether the defendant attempted to avoid a collision with an oncoming car, as he claims, or whether there was no such oncoming car and the defendant just lost control of his car, as the plaintiff now claims, and further, if there was an oncoming car, whether the defendant exercised due care under the circumstances". And the court further charged that "It was the defendant's duty in making the left turn in question to exercise reasonable care to observe oncoming traffic, to avoid an accident. If he did this, and was confronted with an emergency — by which I mean an unforeseen combination of circumstances calling for immediate action — he cannot be held accountable for an error of judgment in the face of immediate and compelling danger." Contrary to the holding of the Appellate Term, it is therefore apparent that the charge in its entirety was adequate and certainly related to the facts of the particular action. Moreover, we note that there was no exception to the main charge. Accordingly, there was no error in the charge and no basis for the reversal of the judgment entered in Civil Court.
Concur — Steuer, J.P., McGivern, Rabin and McNally, JJ.