Freiman v. Spiesman Bakery, Inc.

254 A.D. 888, 5 N.Y.S.2d 222, 1938 N.Y. App. Div. LEXIS 8182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1938
• Status: Published

Opinion

Action to recover damages for personal injuries sustained as a result of a collision between an automobile owned and operated by plaintiff Paul Nadelman, in which plaintiff Morris Freiman was a passenger, and a truck owned by defendant. A verdict was rendered in favor of defendant. Judgment as against Nadelman affirmed, with costs. While the evidence justified a finding that the driver of defendant’s truck was negligent, the negligence of plaintiff Nadelman also was clearly established. Hagarty, Carswell, Johnston and Taylor, JJ., concur; Lazansky, P. J., dissents and votes for reversal and a new trial on the ground that in so far as it imports that Nadelman was negligent the verdict is against the weight of the evidence. Judgment as against plaintiff Freiman reversed on the law and the facts and a new trial granted, costs to Freiman to abide the event. In so far as it imports a finding that Freiman, the passenger in Nadelman’s automobile, was guilty of contributory negligence, the verdict is clearly against the weight of the evidence. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.