Benjamin v. Rose , 20 A.D.2d 838 ( 1964 )

Appeal from a judgment of the Supreme Court, Tioga County, entered in favor of respondent Rose on a jury verdict of no cause of action and from an order denying appellant Benjamin’s motion to set aside the verdict and grant a new trial on the grounds set forth in section 549 of the Civil Practice Act. Benjamin was driving a panel truck westerly on Route 17 near Waverly, New York. Rose was driving a car easterly and the two vehicles collided. Frantz was a passenger in the Benjamin vehicle. Benjamin sued Rose and Benjamin’s passenger Frantz sued Benjamin and Rose. Benjamin was noeaused by the jury in his action against Rose. Frantz, however, in his action against both drivers received a verdict for $4,000. Benjamin appeals claiming these verdicts were inconsistent; that there was improper argument in Rose’s counsel’s summation; and that an improper question was asked of a witness. Each party put in evidence that the other was on the wrong side of the highway. The physical evidence indicates extensive damage to the left front of each vehicle. On this state of the record the conflicting evidence was properly left to the jury, and the jury apparently found with good judgment that the impact occurred in the middle of the road, each vehicle being over the line to some extent. The verdict was not inconsistent. (Zeglen v. Adamson, 12 A D 2d 15, mot. for lv. to app. den. 9 N Y 2d 610.) Cubert v. Spencer (9 A D 2d 28) relied upon by Benjamin is inapposite here. No exception was taken to the Trial Judge’s charge that the jury could properly find both drivers negligent. The other errors alleged were insignficant. Judgment and order affirmed, with costs to respondents filing briefs. Gibson, P. J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.