204 A.D. 189 | N.Y. App. Div. | 1923
This is an appeal by plaintiff from an order of the Oswego Trial Term setting aside a verdict of $6,550 in favor of plaintiff and granting a new trial on the ground that the verdict was against the weight of evidence.
The action is to recover damages for personal injuries received by plaintiff on the night of September 25, 1920, when a motorcycle driven by him on one of the public streets of the city of Oswego struck a pile of crushed stone which had been left by defendant by the side of and partly on the beaten track of the road which resulted in overturning the motorcycle. Plaintiff was thrown out and sustained the injuries complained of. Defendant among other things urged that the verdict was excessive, but, in view of the serious injuries received by plaintiff, if he was entitled to recover at all, we do not think the verdict could be regarded as unreasonable.
The street on which the accident occurred has a macadam surface in the center twelve feet eleven inches wide and on each side is a dirt shoulder, but there was no curbing and no sidewalk on either side of the street. At the point where the accident occurred
As they approached the place of the accident, they met a lady and gentleman walking side by side in a northerly direction, on the easterly portion of the macadam. As the motorcycle approached these pedestrains plaintiff turned slightly to the right to avoid them and almost instantly the sidecar struck this pile of crushed stone and was overturned.
The occupant of the sidecar was thrown out and sustained injuries, and in an action against defendant for his damages he recovered, and on appeal to this court the judgment was unanimously affirmed. (Dashneau v. City of Oswego, 200 App. Div. 854.)
The learned trial court submitted the case to the jury on the theory that the pile of stone left by the side of the road by defendant was an obstruction in the highway and was a nuisance. If it extended over on the macadam two feet as testified to by some of plaintiff’s witnesses and as found by the jury, the macadam being only twelve feet eleven inches wide, the finding that this pile of stone was an obstruction and nuisance was proper in view of the evidence for it was clearly an object that was calculated to work injury, inconvenience and annoyance to those that had a right to use the highway.
The learned trial court in setting aside the verdict emphasized the fact that if plaintiff had looked he must have seen the obstruction, and that if he did not look he was guilty of negligence and that the finding of the jury that he was free from contributory negligence was not justified. If the pile of stone was a nuisance, we do not think the question of contributory negligence was important, but even if it was, the evidence was not so preponderating in favor of defendant on that question as to justify setting aside the verdict. We appreciate the fact that considerable latitude should be allowed the trial court on motions to set aside verdicts (Northam v. Dutchess County Mut. Ins. Co., 68 App. Div. 475; Lyons v. Connor, 53 id.
The order should be reversed, with costs, and verdict reinstated.
All concur; Crouch, J., not sitting.
Order reversed and verdict reinstated, with costs.'