Opinion
August 1, 1961
Appeal from a judgment and an order of the Supreme Court, Sullivan County, denying appellants' motion to set aside the verdict and for a new trial on all of the grounds specified in section 549 of the Civil Practice Act, except excessiveness. Appellant, Roberta Carol, was allegedly injured when a panel truck owned by respondent, Glusker Emkay Sales Corp. and driven by respondent, Hook, struck the rear of a car in which she was a passenger. There was conflicting testimony as to whether the accident was precipitated by the manner in which respondent Hook was operating the panel truck or by the failure of the driver of the car to give proper signals and to pull from the center of the road as she stopped to discharge appellant. Thus there were two distinct versions of the accident presented by the parties, one of which could exculpate the defendant, and the jury who saw the witnesses and heard their testimony has accepted the defendant's version. There is also conflicting medical testimony as to whether the injuries complained of were caused by the instant accident or were the residuum of a prior accident. On the evidence before us we cannot say that the determination of the disputed issues of fact and credibility is erroneous ( Reid v. Haynes, 276 App. Div. 977). There is not in this close case the clear and undisputed evidence required to set aside the jury's verdict ( Hull v. Littauer, 162 N.Y. 569), or to hold that the Trial Justice erred in refusing to disturb it. Judgment and order affirmed, without costs. Bergan, P.J., Herlihy, Reynolds and Taylor, JJ., concur.