Rosenberg v. H. L. & F. McBride, Inc. , 256 A.D. 494 ( 1939 )

Townley, J.

This is a personal injury action. The case was tried before a court and a jury. At the close of plaintiffs’ case the court reserved decision on a motion to dismiss. No exceptions were noted by either side. After both sides rested defendants renewed the motion. The court then stated: “ From all the surrounding circumstances and after patiently having listened to all of the evidence and after viewing the witnesses and observing their demeanor, together with the actions of the plaintiff on the stand, from the physical facts as testified and from all the evidence given by the witnesses, I refuse to permit the jury to speculate on the causes of this accident, and if the jury should bring in a verdict for the plaintiff, I would set the same aside as contrary to the weight of the credible evidence. Complaint dismissed.” We are of the opinion that in granting the defendants’ motion the court fell into error.

Plaintiff Rosenberg was injured in a collision between a car driven by him and a truck driven by Walter Knapp, an employee of the defendant corporation. Both claimed that the collision was caused by the other’s driving on the wrong side of the road. This plaintiff’s version was supported by his testimony and that of another plaintiff, Mrs. Goren, a passenger in his car. Defendant’s sole witness to the accident was the driver of its truck. There were no other witnesses to the accident. Under these circumstances the issue of fact presented should have been submitted to the jury.

The conclusion which we have reached renders consideration of 'the appeal from the order denying a new trial unnecessary. The appeal from said order should be dismissed, without costs.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Martin, P. J., Glennon, Untermyer and Dore, JJ., concur.

Judgment unanimously reversed and a new trial ordered, with costs to the appellants to abide the event. Appeal from order dismissed, without costs.