Owen v. Brugger , 5 A.D.2d 758 ( 1957 )

Judgment and order reversed on the law and facts and verdicts of the jury reinstated, with costs. Memorandum: The County Court set aside verdicts of the jury in favor of both plaintiffs on the grounds that the plaintiff driver “was contributorily negligent as a matter of law, in that she failed to see the defendant’s car” overtaking her from the rear. This question, it seems to us, was one of fact. The plaintiff testified that she looked before turning. Whether this was the act of a reasonable, prudent person, under all of the circumstances, was truly a jury question which was submitted to the jury in a clear and complete charge by the Trial Judge. The court should not have disturbed the jury’s determination of that question, for inherent in the verdicts was a finding of freedom from contributory negligence which was not against the weight of the evidence. (See Knapp v. Barrett, 216 N. Y. 226.) The court should not have disturbed the verdicts and it follows, therefore, that the order and judgments should be reversed, the verdicts reinstated and judgments entered in favor of the appellants. All concur. (Appeal from a judgment of Monroe County Court dismissing plaintiffs’ complaint after the setting aside of verdicts in favor of plaintiffs. The order set aside verdicts of a jury in favor of plaintiffs and directed dismissal of plaintiffs’ complaint.)

Present — McCurn, P. J., Kimball, Williams, Bastow and Goldman, JJ.