258 A.D. 968 | N.Y. App. Div. | 1940
In an action for damages for injury to its motor truck, caused by a collision between the truck and an automobile owned by one of the defendants and driven by the other, plaintiff appeals from a judgment, entered on the verdict of a jury, dismissing plaintiff’s complaint. Judgment of the County Court of Dutchess county reversed on the law and the facts and a new trial ordered, with costs to appellant to abide the event. In so far as the verdict is in favor of the defendants and fails to award damages to the plaintiff upon its claim, it is against the weight of the credible evidence. The learned trial judge’s charge to-the jury, relating to an act of God, was erroneous. Although the condition of the road was due to such an act in the popular sense, it was not due to that cause in the legal sense. (Cormack v. New York, N. H. & H. R. R. Co., 196 N. Y. 442, 447.) Lazansky, P. J., Hagarty, Johnston, Adel and Taylor, JJ., concur.
