Mickle v. Robinson

9 A.D.2d 581, 189 N.Y.S.2d 429, 1959 N.Y. App. Div. LEXIS 7441

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 13, 1959
• Status: Published

Opinion

Appeal by plaintiff from a judgment of the Supreme Court entered upon a jury verdict of no cause of action in a negligence case. Plaintiff was a passenger in a truck operated by her husband when the truck collided with the rear end of defendant’s car. Both vehicles were traveling in the same direction when a rural mail carrier’s ear ahead of them stopped at a mail box with about half of the car remaining on the paved portion of the road. As the defendant was in the process of passing the mail carrier’s ear the collision occurred. It is plaintiff’s contention that defendant’s car slowed or stopped behind the mail carrier’s car and then suddenly pulled to the left ahead of the vehicle in which she was riding. The exact manner in which the collision occurred and the surrounding circumstances are in dispute, and we think a clear question of fact was presented which was fairly submitted to the jury. It is quite obvious that the jury found that the defendant was not negligent, and the evidence would fairly permit such a finding. The only other question raised on this appeal is the claim that it was error for the trial court to refuse a postponement of the commencement of the trial. The case had been on the Trial Calendar at many terms of court and had finally been removed from the calendar pursuant to rule. A motion was granted restoring the case to the calendar, and with everyone’s consent the case was set down definitely for trial on May 7, 1958. Plaintiff’s counsel made an ex parte and informal application to the Trial Judge to postpone the case because the plaintiff’s father had died and the funeral was on May 7. The request was declined with permission to plaintiff’s counsel to explain to the jurors why plaintiff was absent during the preliminary portion of the trial. The jury was drawn and some preliminary evidence introduced. At about three o’clock in the afternoon the court adjourned the case until the following morning, when plaintiff was present. A trial court must necessarily have wide discretion in handling calendar practice, and it was not abused in this instance. There is nothing in this record to indicate that the ruling in any way prejudiced plaintiff. Judgment unanimously affirmed, -with costs. Present — Bergan, J. P., Coon, Gibson, Herlihy and Reynolds, JJ.