Connolly v. Elston

248 A.D. 211, 288 N.Y.S. 910, 1936 N.Y. App. Div. LEXIS 6116

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 23, 1936
• Status: Published

Opinion

Per Curiam.

The action is to recover damages for personal injuries to the plaintiff Mary Connolly, and for loss of her services to William J. Connolly, her husband, arising out of an automobile accident caused by defendant’s alleged negligence.

After the summations of counsel, the court upon motion of plaintiffs, directed a verdict in their favor on the question of liability and left to the jury only the assessment of damages. In thus deciding the issues of defendant’s negligence and plaintiffs’ freedom from contributory negligence, we believe the court erred.

It is only when a verdict for defendant must be set aside as unsupported by sufficient evidence that a verdict for plaintiff should be directed. (Getty v. Williams Silver Co., 221 N. Y. 34, 39; McDonald v. Metropolitan Street Railway Co., 167 id. 66.)

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Present — Martin, P. J., McAvoy, Untermyer, Dore and Cohn, JJ.

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