Opinion
December 29, 1949.
Appeal from County Court of Albany County.
The actions were in negligence. They arose from a slight collision between the automobiles of the defendants while in heavy traffic and in one of which plaintiff, Anna R. Carkner, was riding as a guest of the owner's wife who was operating it. The other action was derivative, brought by the aforesaid plaintiff's husband. The accident in question occurred in 1943. It was undisputed that a front part of the Strokes car came into a slight collision with the left rear fender of the Smith car; that this occasioned no damage whatever to the Strokes car and but inconsequential harm to the other. Both cars were proceeding at a slow rate of speed just before the mishap and also at the time thereof, or else the Smith car made a sudden stop without warning just before the accident, as was claimed on behalf of the defendant Strokes. In the conflict of evidence as to the proximate cause of the accident the jury could have found it was unavoidable in the exercise of due care on the part of the operators of both cars; that it was due to an emergency created by an unknown operator of a third car. It was also in the province of the jury to have found that the ills which Mrs. Carkner testified she suffered were not attributable to any injuries she sustained in the accident. No valid reason appears which justified that the verdicts be set aside. There was ample evidence to sustain the findings of the jury which were implicit in their verdicts. Orders reversed, without costs, and the verdicts reinstated. Foster, P.J., Brewster and Santry, JJ., concur;
Plaintiff Anna R. Carkner was a passenger in a motor vehicle of one of defendants which came in collision with a vehicle of the other defendant. The passenger was not responsible for the operation of the vehicle in which she was riding. Each driver attributed to the other acts which would ordinarily be regarded as negligent. While the collision does not, of course, necessarily mean either operator was negligent, it was the view of the Trial Judge who heard the case and knew the atmosphere of the trial far better than it can be reproduced in a printed record, that the verdict was against the weight of evidence. There rarely should be interference with the judgment and discretion of the Trial Judge in such circumstances. I vote to affirm the order.