Lahr v. Tirrill

249 A.D. 667, 291 N.Y.S. 269, 1936 N.Y. App. Div. LEXIS 5456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 11, 1936
• Status: Published

Opinion

Defendant has appealed from judgments in favor of plaintiffs, husband and wife, in actions to recover damages for personal injuries sustained by the wife while a passenger in defendant’s car and also to recover damages sustained by the husband for loss of the wife’s services and for expenses for her treatment and care. The action was before the court in a former appeal (243 App. Div. 649). The court there reversed the judgments of nonsuit and held that questions of fact were presented for submission to a jury. There is evidence to sustain the finding of the jury that the defendant was negligent and that the plaintiff was free from contributory negligence. Judgments and orders affirmed, with one bill of costs to plaintiffs. Hill, P. J., Rhodes and Heffernan, JJ., concur; McNamee and Crapser, JJ., dissent, and vote to reverse the judgments and orders, and to dismiss the complaints; with a memorandum. McNamee and Crapser, JJ. (dissenting): When this case was before this court on a prior appeal we held, on the evidence then presented, that the defendant “ swung the car first to one side of the road and then to the other; ” and, therefore, held that a question of fact was presented in the record for a jury. In the record now before the court there is no proof that the defendant swung the ear in any way, or that she was guilty of any negligent act or omission. The evidence in the prior case and this case is essentially different.