Penrose v. Central New York Freightways, Inc.

251 A.D. 776, 295 N.Y.S. 531, 1937 N.Y. App. Div. LEXIS 7457

Opinion

Plaintiff has appealed from an order of the Albany Trial Term of the Supreme Court setting aside verdicts of a jury in her favor and dismissing the complaint upon the merits and also from a judgment of dismissal. The action arises out of a collision which occurred on December 31, 1935, at about six-thirty o’clock in the afternoon at stop 14 on the Albany-Schenectady State highway between a Ford automobile which plaintiff’s intestate was driving and a truck owned by the defendant company and operated by the codefendant, Dee. The complaint contains two causes of action, one for damages sustained by the widow and next of kin of the deceased, and one for hospital, medical and surgical attendance and treatment of the deceased from the date of the accident to the date of his death. The verdict in favor of the next of kin was $7,500 and on the second cause of action plaintiff had a verdict for $220. The trial court dismissed the complaint on the ground that no actionable negligence had been established on the part of the defendants. The evidence presented clear questions of fact as to the negligence of the defendants and the intestate’s freedom from contributory negligence and on these questions the verdicts were proper. The trial court erred in setting them aside. Order and judgment reversed on the law and facts, with costs, and verdicts reinstated. Hill, P. J., Rhodes, McNamee, Bliss and Heffeman, JJ., concur.