Lipshitz v. Sloan

280 A.D. 855, 113 N.Y.S.2d 333, 1952 N.Y. App. Div. LEXIS 3906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 13, 1952
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Broome County, setting aside a verdict for defendant and directing a new trial. Plaintiff was driving a three-wheeled service motorcycle in an easterly direction on Court Street in Binghamton at the rate of fifteen miles an hour. Defendant was following him in a Ford automobile at the same speed and about fifteen feet behind him. Portions of the street were under construction, and at the place the two vehicles were traveling the pavement was bumpy. Plaintiff turned to his left to pass around a pile of dirt on the road and then turned back to his right. Defendant thought plaintiff intended to make a left turn, and continued his ear in a straight direction “ right over the bump ”. When plaintiff turned back to the right again the vehicles came into collision. Plaintiff was thrown from his cycle and was injured. The extent of his injuries are in dispute, but that he had some injuries as a result of the accident was clearly established. The jury’s verdict was for the defendant, but the court at Trial Term set aside the verdict and ordered a new trial. While this kind of a case is one in which the factual issues of negligence are always within the province of the jury, the judge who presides at the trial exercises a broad discretionary judgment in supervising the work of the jury in a ease tried before him, and his decision should be sustained when exercised reasonably. We think the judge was within the range of reasonable discretion in this case. Order unanimously affirmed, with $10 costs and disbursements to abide the result. Present — Poster, P. J., Heffernan, Brewster, Bergan and Coon, JJ.