Decker v. Zema

152 A.D.2d 995, 543 N.Y.S.2d 597, 1989 N.Y. App. Div. LEXIS 9926

Opinion

Order unanimously reversed on the law without costs and jury verdict reinstated. Memorandum: Defendants appeal from an order of the trial court setting aside a jury verdict of no cause of action and directing a new trial. Evidence revealed that the vehicle driven by defendants’ decedent slid out of control on slushy and slippery pavement and, despite the efforts of the driver to regain control, crossed the center of the highway and collided with plaintiffs’ vehicle. The court properly instructed the jury that, because defendants’ decedent and his passenger died as a result of the collision, defendants’ burden of proof on negligence was reduced (see, Noseworthy v City of New York, 298 NY 76, 80; Cruz v Long Is. R. R. Co., 28 AD2d 282). Evidence of road conditions, the driver’s efforts to control his vehicle, and the investigating officer’s conclusion that no human factors, such as excessive speed, driver’s inattention or alcohol, contributed to the accident was sufficient to present factual questions for the jury to resolve (Pfaffenbach v White Plains Express Corp., 17 NY2d 132, 135; Vadala v Carroll, 91 AD2d 865, affd 59 NY2d 751), and we do not conclude that the jury could not have reached its verdict on any fair interpretation of the evidence (Nicastro v Park, 113 AD2d 129,134).

Thus viewed, there is no need to address plaintiffs’ cross appeal. (Appeals from order of Supreme Court, Ontario County, Reed, J. — set aside verdict.) Present — Dillon, P. J., Doerr, Pine, Balio and Lawton, JJ.