Opinion
July 2, 1953.
Appeal from Supreme Court of Chemung County.
Present — Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ.
Cross appeal by the plaintiff on the ground of the inadequacy of the verdict against the defendant Bossard. The evidence sustained the finding of the jury that the defendant Ethel Epstein parked her automobile off the highway approximately at right angles to the highway, but so close to the highway that the rear bumper and fender extended onto the highway. The accident occurred at night; because of the position of the Epstein car, its lights were not visible to one approaching it on the traveled portion of the highway. The plaintiff, riding a motorcycle, apparently did not see the car in the darkness and collided with it and sustained the injuries for which a recovery was had against the defendants Epstein. While the headlight of the motorcycle was on, and this gave some light, the question of whether the plaintiff was guilty of contributory negligence in failing to see the automobile in time presented only a question of fact which was fairly submitted to the jury. The plaintiff was thrown to the pavement as the result of the collision and, while lying there, he was struck by the car owned and operated by the defendant Bossard. While the verdict against the defendant Bossard is a low one for the injuries sustained in the second accident, it is not so palpably inadequate as to warrant interference by the court. Judgments appealed from unanimously affirmed, with costs to the plaintiff against the defendants Epstein and with costs to the defendant Bossard against the plaintiff.