Cherry v. North Side Trucking Co.

128 Misc. 677, 219 N.Y.S. 654, 1927 N.Y. Misc. LEXIS 682

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 26, 1927
• Status: Published

Opinion

Per Curiam.

Plaintiff sues for damages to his automobile which was lawfully parked close to the sidewalk. The damage was caused by a combination of circumstances in which both defendants were involved.

Plaintiff called as two of his witnesses defendant Morio, who was driving his own car, and the chauffeur of the trucking company’s car. Each put the blame upon the other. Upon motion of counsel, who appeared for both defendants, the complaint was dismissed as to the defendant Morio, apparently on the ground that plaintiff was concluded by Morio’s evidence that the fault was the trucking company’s. It would seem to have followed logically that it should have been dismissed as to the trucking company on the ground that plaintiff was equally bound by the testimony of the trucking company’s chauffeur. Of course plaintiff was, in the sense in which that word was used, not “ bound ” by the testimony of any witness but was entitled to have the jury weigh the testimony of all the witnesses however contradictory and determine what the actual facts were. (Illich v. Liebers, 127 Misc. 148; Gelb v. Third Ave. R. Co., 123 id. 136.) The dismissal of the complaint as against Morio was, therefore, error and the submission of the case to the jury as against the trucking company after dismissal as to the defendant Morio was so inconsistent and confusing as to require a new trial of the entire case in the interest of justice.

Judgment reversed and a new trial granted, with costs to appellant to abide the event.

All concur; present, Bijur, Delehanty and Crain, JJ.