Fishman v. Warshawsky

4 A.D.2d 880, 167 N.Y.S.2d 495, 1957 N.Y. App. Div. LEXIS 4267

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1957
• Status: Published

Opinion

In an action by appellant Freda Fishman to recover damages for personal injuries, and by her husband to recover damages for injury to property and for medical expenses and loss of services, the appeal is from a judgment entered on the verdict of a jury in favor of respondent. The appellant wife and her friend, the respondent, drove to Montreal on a pleasure trip, together with a son of each. The automobile was owned by the appellant husband. The testimony of the appellant wife is that the car was loaned to both women; that they alternated in driving; that the expenses of operating the car, and the expenses of lodging, etc., on the trip, were paid equally by each woman. On the return trip, at a time when respondent was driving, the car became involved in an accident in Vermont, and the appellant wife was injured. As to the causes of action for personal injury and for medical expenses and loss of services the Trial Justice charged the jury that appellants could recover only upon proof of gross negligence by the respondent, by reason of section 10,223 of the Vermont Statutes, which provides that an occupant may not recover for personal injuries unless the owner or operator has received or contracted to receive pay for the carriage of the occupant or, if otherwise, upon proof of gross negligence. As to the cause of action for property damage the Trial Justice charged the jury that a recovery may he had on proof of ordinary negligence and that no contributory negligence may be charged against the appellant husband inasmuch as he was not present at the place of the accident. The jury found for respondent on all causes of action. Judgment unanimously affirmed, with costs. No opinion. Present — Nolan, P. J., Wenzel, Murphy, Ughetta and Hallinan, JJ.