Kissner v. Baxter

Appellate Division of the Supreme Court of New York

Kissner v. Baxter

31 A.D.2d 993, 297 N.Y.S.2d 638, 1969 N.Y. App. Div. LEXIS 4431

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

DecidedMarch 11, 1969

StatusPublished

This text of 31 A.D.2d 993 (Kissner v. Baxter) 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

Kissner v. Baxter, 31 A.D.2d 993, 297 N.Y.S.2d 638, 1969 N.Y. App. Div. LEXIS 4431 (N.Y. Ct. App. 1969).

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Opinion

Per Curiam.

Appeal by plaintiff in a personal injury negligence action from a judgment of the Supreme Court, entered upon a verdict of no cause of action. A like judgment on a prior trial was, on appeal to this court, reversed and a new trial ordered, for errors in the charge and because the finding of plaintiff’s contributory negligence, implicit in the verdict, was contrary to the weight of the -evidence. (29 A D 2d 905.) Appellant mistakenly contends that our order determined his freedom from contributory negligence as a matter .of law; but although our reversal -on the ground that the verdict was against the weight of the evidence required a new trial (Imbrey v. Prudential Ins. Co. of America, 286 N. Y. 434, mot. for rearg. den. 287 N. Y. 646), we find in this record no substantial evidence of contributory negligence. The Trial Judge’s charge to the jury on the second trial was fair, complete and unobjectionable. The evidence in respect of the critical issue of contributory negligence did not differ in any significant respect from that in the prior record, which we found inadequate to sustain the verdict. Judgment reversed, on the law and the facts, and verdict set aside as contrary -to the weight of the evidence, and a new trial ordered, with costs to abide .the event. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum Per Curiam.

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Per Curiam.

Appeal by plaintiff in a personal injury negligence action from a judgment of the Supreme Court, entered upon a verdict of no cause of action. A like judgment on a prior trial was, on appeal to this court, reversed and a new trial ordered, for errors in the charge and because the finding of plaintiff’s contributory negligence, implicit in the verdict, was contrary to the weight of the -evidence. (29 A D 2d 905.) Appellant mistakenly contends that our order determined his freedom from contributory negligence as a matter .of law; but although our reversal -on the ground that the verdict was against the weight of the evidence required a new trial (Imbrey v. Prudential Ins. Co. of America, 286 N. Y. 434, mot. for rearg. den. 287 N. Y. 646), we find in this record no substantial evidence of contributory negligence. The Trial Judge’s charge to the jury on the second trial was fair, complete and unobjectionable. The evidence in respect of the critical issue of contributory negligence did not differ in any significant respect from that in the prior record, which we found inadequate to sustain the verdict. Judgment reversed, on the law and the facts, and verdict set aside as contrary -to the weight of the evidence, and a new trial ordered, with costs to abide .the event. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Cooke, JJ., concur in memorandum Per Curiam.

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Bluebook (online)

31 A.D.2d 993, 297 N.Y.S.2d 638, 1969 N.Y. App. Div. LEXIS 4431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kissner-v-baxter-nyappdiv-1969.

Opinion

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