Farrell v. Kory

245 A.D. 901

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1935
• Status: Published

Opinion

Appeal from judgments entered in Saratoga county in favor of the defendants upon verdicts rendered by the jury in favor of said defendants and from an order denying plaintiff’s motion to set aside the verdict and for a new trial. Plaintiff’s complaint alleges and proof shows that her intestate was riding in an automobile owned and operated by the defendant Van Lew when it came in collision with an automobile owned, and operated in the opposite direction, by the defendant Kory. Plaintiff’s proof shows that each car was on the wrong side of the highway. Defendant Van Lew contended that plaintiff’s intestate was the operator of the Van Lew car and testified that he himself did not remember anything about the actual happening of the accident. The defendant Kory contended that the Van Lew car was being operated on the wrong side of the highway and at an excessive rate of speed while his own car was in its proper position upon the highway traveling at a reasonable speed. The defendant Van Lew claimed to have been asleep at the time of the accident. The jury’s verdict was amply sustained by the evidence. The court below properly charged as to the duties of the operators and the passenger and the burden of proof. It also charged that if plaintiff’s intestate was driving the Van Lew car plaintiff could not recover against either defendant because the action had been brought and tried upon the theory that plaintiff’s intestate was a passenger. This charge was correct under the facts as established. Judgments and order unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ.