Opinion
November 10, 1953.
Present — Peck, P.J., Dore, Cohn, Callahan and Bergan, JJ.; Cohn and Callahan, JJ., dissent in the following separate memorandums:
On the testimony of plaintiffs' own witnesses demonstrating the emergency unexpectedly created in the eastbound lane by the erratic operation of the DeSoto car that came from the westbound lanes, cut across both eastbound lanes in a southerly direction, and then changed its course in a northwesterly direction into the path of eastbound traffic, plaintiffs failed to establish against defendant, Whisnant, driver of the Cadillac car going eastward, any actionable negligence proximately causing the accident and the injuries. Judgment insofar as appealed from by the defendant Whisnant, reversed and the complaint dismissed, with costs in favor of said defendant. Settle order on notice.
I dissent and vote to reverse and grant a new trial as to the plaintiff Boyle and against the defendant Whisnant, upon the ground that the verdict of the jury in favor of Boyle is excessive. I would affirm as to this plaintiff if he stipulates to a reduction of the verdict to the sum of $30,000. As to plaintiff Meyer, I vote to affirm. The question of defendant Whisnant's negligence was properly submitted to the jury and its determination thereon is sustained by the evidence.
I dissent and vote to reverse and order a new trial as against the defendant Whisnant, upon the ground that the verdict is against the weight of evidence. Settle order on notice.