Belles v. Walter

Appellate Division of the Supreme Court of New York

Belles v. Walter

32 A.D.2d 866, 301 N.Y.S.2d 234, 1969 N.Y. App. Div. LEXIS 3631

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 24, 1969

StatusPublished

Cited by1 cases

This text of 32 A.D.2d 866 (Belles v. Walter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Belles v. Walter, 32 A.D.2d 866, 301 N.Y.S.2d 234, 1969 N.Y. App. Div. LEXIS 3631 (N.Y. Ct. App. 1969).

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Opinion

Reynolds, J.

Appeal from a judgment of the Supreme Court, Tioga County, dismissing the complaint on the merits after a jury verdict of no cause of action and from an order of the same court denying appellant’s application for a new trial. Appellant seeks to recover for personal injuries allegedly sustained when she was struck by an automobile owned by respondent Carolyn E. Walter and operated by respondent E. Franklin Walter. The jury unanimously found “ negligence on both sides ” and therefore no cause of action. Appellant urges that the charge was improper or erroneous but no exception was taken and, if any error was present, it was clearly not so fundamental as to require a reversal without an exception (e.g. Brown v. Du Frey, 1 N Y 2d 190, 196; Benjamin v. Rose, 20 A D 2d 838; cf., Winser v. Trombley, 14 A D 2d 963). Nor can we say that the jury’s verdict is contrary to the weight of the evidence. “ To decide this question we must take the view of the proof most favorable to the verdict.” (Hannan v. Schmitt, 18 A D 2d 854; Dowell v. Remmer, 24 A D 2d 542.) On the instant record the jury, upon resolving the conflicting testimony, could properly find that appellant was guilty of contributory negligence in alighting into the flow of traffic and-onto a slippery road covered with [867]*867snow from a vehicle parked one half on the paved portion of the road, being on the wrong side of the highway and in defendant’s lane of travel, and in failing to do no more, after putting herself in this dangerous position, than stand close to the vehicle from which she had alighted when respondents’ vehicle approached. Judgment and order affirmed, without costs. Gibson, P. J., Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.; Aulisi, J., not voting.

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Reynolds, J.

Appeal from a judgment of the Supreme Court, Tioga County, dismissing the complaint on the merits after a jury verdict of no cause of action and from an order of the same court denying appellant’s application for a new trial. Appellant seeks to recover for personal injuries allegedly sustained when she was struck by an automobile owned by respondent Carolyn E. Walter and operated by respondent E. Franklin Walter. The jury unanimously found “ negligence on both sides ” and therefore no cause of action. Appellant urges that the charge was improper or erroneous but no exception was taken and, if any error was present, it was clearly not so fundamental as to require a reversal without an exception (e.g. Brown v. Du Frey, 1 N Y 2d 190, 196; Benjamin v. Rose, 20 A D 2d 838; cf., Winser v. Trombley, 14 A D 2d 963). Nor can we say that the jury’s verdict is contrary to the weight of the evidence. “ To decide this question we must take the view of the proof most favorable to the verdict.” (Hannan v. Schmitt, 18 A D 2d 854; Dowell v. Remmer, 24 A D 2d 542.) On the instant record the jury, upon resolving the conflicting testimony, could properly find that appellant was guilty of contributory negligence in alighting into the flow of traffic and-onto a slippery road covered with [867]*867snow from a vehicle parked one half on the paved portion of the road, being on the wrong side of the highway and in defendant’s lane of travel, and in failing to do no more, after putting herself in this dangerous position, than stand close to the vehicle from which she had alighted when respondents’ vehicle approached. Judgment and order affirmed, without costs. Gibson, P. J., Reynolds, Cooke and Greenblott, JJ., concur in memorandum by Reynolds, J.; Aulisi, J., not voting.

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Bluebook (online)

32 A.D.2d 866, 301 N.Y.S.2d 234, 1969 N.Y. App. Div. LEXIS 3631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belles-v-walter-nyappdiv-1969.

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