Kelly v. Collins

Appellate Division of the Supreme Court of New York

Kelly v. Collins

252 A.D. 794, 299 N.Y.S. 152, 1937 N.Y. App. Div. LEXIS 6317

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 29, 1937

StatusPublished

This text of 252 A.D. 794 (Kelly v. Collins) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Collins, 252 A.D. 794, 299 N.Y.S. 152, 1937 N.Y. App. Div. LEXIS 6317 (N.Y. Ct. App. 1937).

Pincite

Opinion

Judgment in favor of defendants Collins and Roache, entered on the verdict of a jury in an action to recover damages for death by wrongful act, resulting from a collision between an automobile owned by defendant Collins and operated by defendant Roache and a truck owned by defendant Troanovitch, not a party to this action. Judgment reversed on the law and the facts and a new trial granted, costs to abide the event. The only evidence as to the manner in which the accident happened is to be found in the depositions of the witness Fedo, the operator of the truck, and the witness Pegula, his helper. Both testified that defendant Roache, without warning, suddenly turned to his left from behind another automobile and across the middle lane, where his car sMdded and came in contact with the truck, which was proceeding in the opposite direction on its extreme right side of the road. The defendants called no witnesses although Roache attended the trial. In our opinion the verdict is clearly against the weight of the evidence. The proof shows that Roache was negligent and there -is ho evidence that the deceased was guilty of contributory negligence, ^nd it was ferror, therefore, [795]*795to submit to the jury the issue of contributory negligence. Davis, Johnston and Close, JJ., concur; Carswell and Adel, JJ., concur on the ground that, in view of the state of the proof, there was error in the charge as to contributory negligence.

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Judgment in favor of defendants Collins and Roache, entered on the verdict of a jury in an action to recover damages for death by wrongful act, resulting from a collision between an automobile owned by defendant Collins and operated by defendant Roache and a truck owned by defendant Troanovitch, not a party to this action. Judgment reversed on the law and the facts and a new trial granted, costs to abide the event. The only evidence as to the manner in which the accident happened is to be found in the depositions of the witness Fedo, the operator of the truck, and the witness Pegula, his helper. Both testified that defendant Roache, without warning, suddenly turned to his left from behind another automobile and across the middle lane, where his car sMdded and came in contact with the truck, which was proceeding in the opposite direction on its extreme right side of the road. The defendants called no witnesses although Roache attended the trial. In our opinion the verdict is clearly against the weight of the evidence. The proof shows that Roache was negligent and there -is ho evidence that the deceased was guilty of contributory negligence, ^nd it was ferror, therefore, [795]*795to submit to the jury the issue of contributory negligence. Davis, Johnston and Close, JJ., concur; Carswell and Adel, JJ., concur on the ground that, in view of the state of the proof, there was error in the charge as to contributory negligence.

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Bluebook (online)

252 A.D. 794, 299 N.Y.S. 152, 1937 N.Y. App. Div. LEXIS 6317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-collins-nyappdiv-1937.