Capsico v. Bennett

Appellate Division of the Supreme Court of New York

Capsico v. Bennett

38 A.D.2d 787, 328 N.Y.S.2d 78, 1972 N.Y. App. Div. LEXIS 5579

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

DecidedJanuary 20, 1972

StatusPublished

This text of 38 A.D.2d 787 (Capsico v. Bennett) 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

Capsico v. Bennett, 38 A.D.2d 787, 328 N.Y.S.2d 78, 1972 N.Y. App. Div. LEXIS 5579 (N.Y. Ct. App. 1972).

Pincite

Opinion

Order unanimously reversed, without costs, and verdict reinstated. Memorandum : A clear issue of fact is presented as to the manner in which the accident resulting in injury to the plaintiff occurred. Defendant’s credibility was for the jury to evaluate and his account of his actions would support a finding that, under all the circumstances of an emergency situation not of his own creation, he operated his vehicle with reasonable care. The jury could also have concluded that plaintiff did not exercise reasonable care for his own safety when he ventured into the street to unlock his car without making reasonable-observation of oncoming traffic. “A verdict in favor of a defendant should not be set aside as against the weight of the credible evidence unless the preponderance in favor of the plaintiff was so great that the finding in favor of the defendant could not have béen reached upon any fair interpretation of the evidence” (Olsen v. Chase Manhattan Bank, 10 A D 2d 539, 544, affd. 9 N Y 2d 829; and see Blunt v. Zinni, 32 A D 2d 882, 883; Ryder v. Cue Car Rental, 32 A D 2d 143, 148). The record demonstrates no prejudicial error in the conduct of the trial that could have influenced the jury’s verdict of no cause of action. (Appeal from order of Brie Trial Term setting aside verdict in automobile negligence action.) Present—Marsh, J. P., Witmer, Moule, Cardamone and Henry, JJ.

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Order unanimously reversed, without costs, and verdict reinstated. Memorandum : A clear issue of fact is presented as to the manner in which the accident resulting in injury to the plaintiff occurred. Defendant’s credibility was for the jury to evaluate and his account of his actions would support a finding that, under all the circumstances of an emergency situation not of his own creation, he operated his vehicle with reasonable care. The jury could also have concluded that plaintiff did not exercise reasonable care for his own safety when he ventured into the street to unlock his car without making reasonable-observation of oncoming traffic. “A verdict in favor of a defendant should not be set aside as against the weight of the credible evidence unless the preponderance in favor of the plaintiff was so great that the finding in favor of the defendant could not have béen reached upon any fair interpretation of the evidence” (Olsen v. Chase Manhattan Bank, 10 A D 2d 539, 544, affd. 9 N Y 2d 829; and see Blunt v. Zinni, 32 A D 2d 882, 883; Ryder v. Cue Car Rental, 32 A D 2d 143, 148). The record demonstrates no prejudicial error in the conduct of the trial that could have influenced the jury’s verdict of no cause of action. (Appeal from order of Brie Trial Term setting aside verdict in automobile negligence action.) Present—Marsh, J. P., Witmer, Moule, Cardamone and Henry, JJ.

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Bluebook (online)

38 A.D.2d 787, 328 N.Y.S.2d 78, 1972 N.Y. App. Div. LEXIS 5579, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capsico-v-bennett-nyappdiv-1972.