Barresi v. Kapr

226 A.D.2d 1074, 642 N.Y.S.2d 121, 1996 N.Y. App. Div. LEXIS 5541

Opinion

Order unanimously reversed on the law without costs, motion denied and verdict reinstated. Memorandum: In this personal injury action brought by plaintiff passenger against defendant driver following a single car accident, defendant appeals from an order granting plaintiffs motion to set aside the jury verdict in favor of defendant and ordering a new trial. Defendant contends that Supreme Court erred in setting aside the verdict as against the weight of the evidence.

A verdict should not be set aside as against the weight of the evidence unless the evidence so preponderates in favor of the moving party that the jury could not have reached its verdict upon any fair interpretation of the evidence (see, Grassi v Ulrich, 87 NY2d 954; Nicastro v Park, 113 AD2d 129, 134). The jury’s finding that defendant was free from negligence was based upon a fair interpretation of the evidence. Defendant testified without contradiction that he was driving at 45 miles per hour, 10 miles below the posted limit, when he unexpectedly hit a patch of "black ice” and lost control of his vehicle. The fact that the vehicle traveled only 50 to 60 feet before coming to a stop tends to establish that it was being driven relatively slowly. The jury, which saw and heard the witnesses, was in the best position to evaluate the circumstances and the nature of defendant’s conduct, and there is no basis for usurping the jury’s function. (Appeal from Order of Supreme Court, Chautauqua County, Cass, Jr., J.—Set Aside Verdict.) Present—Denman, P. J., Green, Fallon, Callahan and Doerr, JJ.