Kreeger v. Karen , 3 A.D.2d 859 ( 1957 )

In an action to recover damages for injuries to person and property and for medical expenses and loss of services, the appeal is from a judgment entered on a jury verdict in favor of respondents. The personal injuries were received by respondent Doris H. Kreeger when a motor vehicle, owned by her and operated by respondent Nathan Kreeger, was struck by appellants’ motor vehicle, while respondents’ motor vehicle was making a left turn on a wet, slippery street. The evidence shows that when respondents’ car started the turn, it was in the path of appellants’ car, which was about 200 feet distant and approaching at a speed which the driver of respondents’ ear did not then notice. Judgment reversed and new trial granted, with costs to abide the event. In our opinion the finding, implicit in the verdict, that the driver of respondents’ ear was not guilty of contributory negligence is contrary to the weight of the evidence. (Cf. Bertsch v. Smith, 237 App. Div, 836; Same V. Davison, 253 App. Div. 123; Sotine v. Monett, 137 N. Y. S. 2d 727.) We do not pass on the question of whether or not the amount of the verdict was excessive. Wenzel, Acting P. J., Murphy and Ughetta, JJ., concur; Beldoek and Kleinfeld, JJ., dissent and vote to affirm on the ground that a question of fact as to contributory negligence was presented for determination by the jury (Ward v. Clark, 232 N .Y. 195). [See post, p. 937.]