Remillard v. Homer Bros. , 243 A.D. 829 ( 1935 )

Plaintiff’s intestate, a guest passenger, alighted from an automobile responsive to a call of nature, and stood upon his right-hand side of the paved portion of the highway, or on its adjacent shoulder. The automobile from which he had alighted, standing upon the right-hand side of the highway, was struck by another, owned and driven by defendant, which approached, traveling in the same direction as the one from which the intestate had alighted. The automobile in which the intestate had been riding was driven ahead twice its length. Defendant’s car, after the impact, crossed the highway. Intestate was found in the ditch ahead of the automobile from which he had alighted, with his skull fractured. Order denying plaintiff’s motion to set aside verdict, and judgment entered thereon, reversed on the law and facts, on the ground that the jury’s finding that plaintiff’s intestate was negligent is against the weight of the evidence, with costs to the plaintiff to abide the event; and plaintiff’s motion to set aside verdict and for a new trial granted, with ten dollars costs to the plaintiff to abide the event. Hill, P. J., McNamee and Heffernan, JJ., concur; Crapser and Bliss, JJ., dissent.