Rasbach v. Cassidy

263 A.D. 1047, 33 N.Y.S.2d 762, 1942 N.Y. App. Div. LEXIS 7992

Opinion

Appeal from judgments in favor of plaintiffs in automobile negligence actions. The defendant Cassidy was the driver, and defendant Lavine the owner, of the automobile. It was driven across a wide State highway and upon its wrong side of the road. The living plaintiffs and the intestate were all injured. It is asserted on behalf of the defendant-driver that he became unconscious, and on behalf of the owner-defendant that the car was being driven without his consent and in violation of his orders. There was a question of fact as to these defenses. There was an unusual situation in connection with the returning of the verdict, the jury in the first instance finding against the owner but not against the driver. This was in contravention of the charge of the court and was corrected. By stipulation of the parties the jury was permitted to return its verdict to the clerk in the absence of the court. The correction was .made on the following court day. It does not appear that the defendants’ rights were prejudiced. Judgments and orders affirmed, with one bill of costs and disbursements. Hill, P. J., Bliss, Heffernan and Foster, JJ., concur; Crapser, J., dissents, and votes to reverse the judgments and orders appealed from and to grant a new trial.