Korytowski v. Maiuccoro , 4 A.D.2d 808 ( 1957 )

— Appeal from a judgment entered on the verdict of a jury rendered at a Trial Term of the Supreme Court, Schenectady County. In this negligence action the jury returned a verdict of no cause of action in favor of defendant. Plaintiff made no motion to set aside the verdict or for a new trial, but appeals from the judgment. On appeal he urges that the verdict is against the weight of the evidence. When the action was first tried, the Trial Term regarded the proof of negligence to be so thin that defendant was entitled to a dismissal. We held (286 App. Div. 1130) that a triable issue was presented. We are of opinion, however, that the verdict of the jury against the plaintiff is consistent with the weight of evidence. The only testimony of actual operation of the ear presented or available in view of the fact plaintiff, a passenger, was asleep, was that of the defendant who was the driver. The speed of 45-50 miles an hour going around a curve marked 40 miles an hour might or might not have been held by the jury to have been an effective factor in the accident. The jury could have found that the producing cause was an icy condition at the curve which caused the car to skid; and while it may be argued that the driver had seen other icy places along the road, the jury was free to find on this record that she was not required to have anticipated the existence of the ice at this particular curve or that it would have caused the ear to skid. In our judgment the record is distinguishable from the accelerated speed around a very sharp curve, unexplained by the driver, in Bossi v. Nacearatd (286 App. Div. 940), where we held the defendant’s verdict against the weight of evidence. Judgment affirmed, with costs. Bergan, J. P., Coon, Halpern and Gibson JJ., concur.