Gordon v. Brooklyn & Queens Transit Corp.

268 A.D. 1044, 52 N.Y.S.2d 324, 1945 N.Y. App. Div. LEXIS 5425

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 2, 1945
• Status: Published

Opinion

In an action to recover damages for personal injuries and for medical expenses and loss of services, the jury’s verdict in favor of the plaintiffs was set aside by the trial court on the ground that the plaintiff wife was guilty of contributory negligence as a matter of law, and the complaint was dismissed. From the order and the judgment entered thereon, plaintiffs appeal. Order and judgment reversed on the law and the facts, the motion denied, and a new trial granted, with costs to abide the event. The plaintiff wife was struck by defendant’s trolley car while she was crossing the street. The evidence was susceptible of the inference that while she was in the act of crossing and in full view of defendant’s motorman, he increased the speed of the car; and that she could have passed in front of it safely had it not been for such increased speed. Under those circumstances, it was error to hold her guilty of contributory negligence as a matter of law. (Him v. Eighth Avenue Railroad Co., 243 N. T. 90; McDermott v. Brooklyn Heights R. R. Go., 89 App. Div. 214.) However, in our opinion, the verdict of the jury, particularly insofar as it imported a finding that the plaintiff wife was free from contributory negligence, was against the weight of the evidence, and for that reason a new trial is required. Close, P. J., Hagarty, Johnston and Aldrich, JJ., concur; Lewis, J., not voting.