Opinion
March 27, 1972
In consolidated negligence actions to recover damages for personal injuries, etc., defendant Dover Drag Strip, Inc. appeals from a judgment of the Supreme Court, Westchester County, entered June 16, 1971, against it and in favor of plaintiff Dennis R. Oliva, upon a jury verdict of $40,000. Judgment reversed, on the law and the facts, and new trial granted as between said plaintiff and said defendant, with costs to abide the event. The alleged negligence of appellant, in the operation of an automobile race track, consisted of failure to provide adequate barriers between the track and the spectators and failure to discover, through reasonable inspection, a substandard bellhousing on one of the racing cars. In our opinion, neither of these theories of liability was proven by a preponderance of the evidence. We might add that, if both theories are submitted to the jury at the new trial, it would be appropriate to instruct the jury to render a special verdict, because if a general verdict is returned, and in respondent's favor, but the evidence, upon review, is deemed to support only one of the grounds submitted to the jury, the judgment could not stand ( Hamilton v. Presbyterian Hosp. of City of N.Y., 25 A.D.2d 431). Rabin, P.J., Hopkins, Latham, Gulotta and Christ, JJ., concur.