Opinion
November 9, 1926.
Appeal from Supreme Court of Monroe County.
Robert H. Woody [ Arthur Vd. Chamberlain of counsel], for the appellant.
Lynn Brothers [ William F. Lynn of counsel], for the respondent.
Plaintiff, respondent, was a passenger in her son's automobile, which was proceeding easterly on Blossom road, Rochester, at eight-thirty P.M., July 26, 1924. It was dark. Appellant was driving an automobile southerly on Winton road. The cars collided at the intersection and respondent was injured. In an action for damages the jury found a verdict of no cause of action. The learned justice presiding at the trial set aside the verdict upon the ground that it was contrary to the weight of the evidence.
The verdict of no cause of action had for its support testimony that it was dark; that the headlights on both automobiles were lighted; that appellant heard no horn blown, and that the driver of the other automobile stated after the accident that he did not blow his horn; that after appellant was about two-thirds of the way across the intersection of the two roads, the other automobile made sort of a curve around in front of appellant, whose automobile struck the left rear wheel of the other car; that neither automobile was being driven at an excessive rate of speed.
The situation was not like that presented in Shirley v. Larkin Co. ( 239 N.Y. 94), relied on by respondent. It differed in that this jury was not required to find that the appellant knew, or should have known, of the approach of the other automobile from his right at a time and under such circumstances that appellant was bound to have avoided the collision by slowing down or stopping his automobile. Whether or not subdivision 4 of section 12 of the General Highway Traffic Law required appellant to handle his automobile otherwise than he did was a jury question. ( Ward v. Clark, 232 N.Y. 195.) The burden of proof was on respondent to show at least concurring negligence in appellant which was proximately responsible for the collision. This burden was not necessarily met by the testimony showing the locus and the details of the collision and the preceding and subsequent details, including in that testimony the remarkable statement of the driver with whom respondent was riding that when he was just starting across Winton road appellant's automobile was 150 feet away.
The verdict was not so unreasonable as to permit the learned trial court, in the exercise of its discretion, to set the verdict aside. "Jury verdicts should stand unless evidently based upon or influenced by passion, prejudice, partiality or corruption," or where "there is nothing indicating irregularity, bias, unfairness or inadequate consideration of the testimony." ( Fitzgerald v. New York Central R.R. Co., 215 App. Div. 1.)
The order should be reversed on the law and facts, with costs, and the verdict reinstated.
All concur. Present — HUBBS, P.J., CLARK, SEARS, CROUCH and TAYLOR, JJ.
Order reversed on the law and facts, with costs, and verdict reinstated, with costs.