Opinion
April 11, 1955.
In an action to recover damages for personal injuries, the appeal is from a judgment in favor of respondents. Judgment, insofar as it is in favor of respondent Triboro Coach Corporation, affirmed, with costs to that respondent as against the appellant. Judgment, insofar as it dismissed the complaint against the respondent Sam Malkin, doing business as Verlin Sons, reversed on the law and new trial granted, with costs to appellant to abide the event. The evidence at the close of the appellant's proof required the submission of the question of the negligence of the respondent Malkin to the jury. Appellant, by calling as a witness the driver of the truck of that respondent, did not render unbelievable as matter of law the testimony of the bus driver and the other witnesses whom he had called. We find no error in the charge or refusals to charge which requires a new trial as against the respondent Triboro Coach Corporation. The jury were instructed that if its driver was negligent in any degree, the appellant must have judgment against it. The verdict in its favor presumably was rendered because no negligence on its part in any degree was established. MacCrate, Acting P.J., Schmidt, Beldock, Murphy and Ughetta, JJ., concur.