Opinion
December 7, 1970
In this negligence action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Nassau County, dated April 13, 1970, which granted plaintiffs' motion, made at the end of the trial, to set aside the jury verdict in defendants' favor and ordered a new trial. Order reversed, with costs, motion denied and verdict reinstated. The trial court set aside the verdict after a "review of the testimony of defendant driver and of the photographs in evidence" as against the weight of the evidence. Upon a review of the record before us, we are of the opinion that the jury's interpretation of the photographs, coupled with the parties' conflicting versions of the happening or causation of the accident, created questions of fact for the jury's determination, for which the trial court was not privileged to substitute its judgment (cf. Marton v. McCasland, 16 A.D.2d 781; Lalomia v. Biggers, 25 A.D.2d 742; Carino v. Marino, 28 A.D.2d 514; Vaughn-Rees v. Connolly, 30 A.D.2d 785). Hopkins, Acting P.J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.