Opinion
March 18, 1968
Defendants appeal from so much of a judgment and order (one paper) of the Supreme Court, Richmond County, dated February 1, 1967, as set aside the jury verdict insofar as it was against plaintiff Alverta Lynch as contrary to the weight of the credible evidence and as to said plaintiff granted a new trial and severed the action. Judgment and order reversed insofar as appealed from, without costs; jury verdict as to said plaintiff reinstated; and case remitted to Trial Term for the entry of an amended judgment in accordance herewith. Plaintiff Alverta Lynch was a passenger in an automobile being driven by her husband coplaintiff, Frank Lynch, when it collided with another vehicle driven by defendant James Dillon, Jr. at an intersection. The intersection was controlled as to the Lynches by a "Yield" sign. The jury returned a defendants' verdict as to both plaintiffs and the learned Trial Justice set the verdict aside only insofar as it was against Mrs. Lynch. We find that that determination is not supportable for the reason that the jury was given sharply drawn issues of fact and credibility, resolution of which could have supported a finding of negligence on the part of Mr. Lynch only. Under such circumstances, it may not be said that the evidence preponderates so greatly in favor of Mrs. Lynch's case that the jury could not have reached its conclusion in her case on any fair interpretation of the evidence (see, Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, affd. 9 N.Y.2d 829). Christ, Acting P.J., Hopkins, Benjamin and Munder, JJ., concur; Martuscello, J., dissents and votes to affirm the judgment and order insofar as appealed from.