Opinion
July 7, 1950.
Present — Nolan, P.J., Johnston, Adel, Sneed and Wenzel, JJ.
This action was brought by plaintiff wife to recover damages for personal injuries, and by her husband for expenses and loss of services. The husband died prior to the trial and the executrix of his estate, Regina M. Conklin, was substituted in his place. The wife was injured when a bus owned and operated by appellant Swartz, in which she was a passenger, collided with a snowplow which was being operated on a highway by appellant Keener, as an employee of appellant County of Orange. The snowplow and the area of the two-lane highway immediately around it were enveloped in what has been characterized as a cloud of snow, which was so dense that one could not see into it. Both vehicles were proceeding in the same direction on the right-hand side of the road, the bus to the rear of the snowplow, the snowplow at the rate of one mile per hour and the bus at about fifteen to twenty miles per hour. Swartz first observed the stated condition when he was about one hundred feet distant. The jury returned a verdict in favor of the plaintiff wife in the amount of $15,000, and in favor of Regina M. Conklin, as executrix, etc., in the amount of $1,542.90, against all three defendants. On appeal by defendants County of Orange and Harold Keener, the judgment is reversed on the law, with costs, and the complaint dismissed as to them on the law, with costs, on the ground that the evidence is insufficient, as a matter of law, to sustain any finding of negligence on their part. In any event a new trial would be granted on the ground that the verdict is against the weight of the evidence. Nolan, P.J., Adel, Sneed and Wenzel, JJ., concur; Johnston, J., concurs as to reversal of the judgment but dissents as to dismissal of the complaint and votes to grant a new trial as to said defendants on the ground that the verdict is against the weight of the evidence. On appeal by defendant Swartz, the judgment is reversed on the facts and a new trial granted, with costs to appellant to abide the event, unless within ten days after the entry of the order hereon respondent Regina Conklin stipulate that the verdict in her individual favor be reduced to $10,000, in which event the judgment, as so reduced, is unanimously affirmed, without costs. In our opinion the verdict of the jury in favor of plaintiff Regina Conklin was excessive. Judgment as to Regina M. Conklin, as executrix, etc., unanimously affirmed, without costs.