Zajac v. Rochester Soda Water Co.

259 A.D. 1055, 20 N.Y.S.2d 531, 1940 N.Y. App. Div. LEXIS 7947

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 5, 1940
• Status: Published

Opinion

Judgments and orders reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: The jury could have found that the defendant Rochester Soda Water Company’s tmek was stopped in the roadway in violation of subdivision 8 of section 86 of the Vehicle and Traffic Law. The jury could also have found that the Ulrich car suddenly, and without warning, turned out from behind the standing truck and passed on its left striking the plaintiff as he stepped from in front of the truck and that the truck prevented the plaintiff from seeing the Ulrich car until it collided with him. Under these circumstances it was for the jury, and not for the court, to say whether the defendants were negligent and whether the plaintiff was free from contributory negligence. If any legitimate conclusion could have reasonably been drawn from the evidence, it should not have been wholly rejected by the court. (See Queeney v. Willi, 225 N. Y. 374.) The direction of a verdict for the defendants, therefore, was error. All concur. (The judgments are for the defendants in an automobile negligence action. The orders deny motions for a new trial.) Present — Crosby, P. J., Cunningham, Taylor, Dowling and Harris, JJ.