Opinion
September 21, 1970
In a negligence action to recover damages for personal injuries, defendants appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County, entered August 21, 1969, as granted plaintiffs' motion to set aside a jury verdict in defendants' favor, after trial on the issue of liability only, and directed a new trial. Order reversed insofar as appealed from, with one bill of costs to appellants jointly; said motion by plaintiffs denied; and jury verdict reinstated. Plaintiffs' testimony constituted a prima facie showing of negligence on the part of defendants ( Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83). However, "despite the fact that no evidence was offered on defendant [s'] behalf as to how the accident occurred, the jury was not required to resolve the issue of negligence against the defendant [s]" ( Pertofsky v. Drucks, 16 A.D.2d 690). On the proof adduced, it may not be held that the evidence preponderated so greatly in favor of plaintiffs as to establish that the jury's verdict for defendants "could not have been reached upon any fair interpretation of the evidence" ( Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, 544, affd. 9 N.Y.2d 829). The jury might well conclude from the proof that neither defendant was negligent. Nor did the trial court's admittedly erroneous instruction to the jury on contributory negligence as respects the plaintiff driver furnish any basis for setting aside the verdict. The charge that the plaintiff driver could recover on his claim for loss of services and expenses incurred as a result of injuries inflicted upon his wife, a passenger in his car and a plaintiff herein, even if his own negligence contributed to the accident, could not have affected the verdict as it was highly favorable to the plaintiff driver. Moreover, the jury was properly instructed that any negligence on the part of the plaintiff driver could not be imputed to the plaintiff passengers (cf. Yandian v. Merlis, 34 A.D.2d 582). Christ, P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.