Pescetti v. Mastrodominico

79 A.D.2d 970, 434 N.Y.S.2d 283, 1981 N.Y. App. Div. LEXIS 9848

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 5, 1981
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, dated May 27, 1980, which vacated and set aside the verdict in his favor on the issue of liability, after a jury trial. Order reversed, with costs, and verdict reinstated. The defendant’s car, which he was operating and in which plaintiff was a passenger, left the road and struck a pole on the left hand side of the road, causing plaintiff to sustain personal injuries. Defendant testified, inter alia, that a dog “shot” in front of his car only a few feet away, and that he swerved to avoid hitting it. Plaintiff testified that shortly before the accident she “thought” defendant was picking up speed and asked him to slow down. She was rendered unconscious as a result of the vehicle striking the pole. Plaintiff also testified that she did not see a dog run onto the road. In its instructions to the jury the trial court included a charge that a “person faced with an emergency dnd acts without opportunity for deliberation to avoid an accident, may not be charged with negligence if he acts as a reasonably prudent person would act under the same emergency circumstances”. The jury then returned a verdict in favor of defendant on the issue of liability. The trial court thereupon set the verdict aside on the ground, inter alia, it was unconscionable. We disagree. Since the issue of whether defendant was confronted with an emergency was a close question of fact for the jury, its verdict in favor of defendant was not “either contrary to or against the weight of evidence” (see Becker v Beir, 275 App Div 146, 147). Accordingly, the verdict, after trial, in favor of defendant is reinstated. Hopkins, J.P., Titone, Mangano and Rabin, JJ., concur.