18 A.D.2d 1006 | N.Y. App. Div. | 1963
In two consolidated negligence actions to recover damages for injury to person and property, loss of services and medical expenses, the plaintiffs in Action No. 1 (who are husband and wife) and the plaintiff in Action No. 2 (who is th^ mother of the defendant in that action) appeal from a judgment of the Supreme Court, Westchester County, entered April 27, 1962 after trial upon a jury’s verdict, in favor of the defendant in each action. Judgment reversed on | the law and the facts, and a new trial ordered, with costs to plaintiffs to abide the event. Clotilde Giordano (a plaintiff in both actions) was a passenger in a car owned by her husband, Aniello Giordano (a coplaintiff in Action No. ¡1) and driven by their son Diego Giordano (the defendant in Action No. 2) when it collided with a ear operated by Edmund Fletcher (the defendant in Action No. 1) at an intersection controlled by a traffic light. Each defendant driver contended that the light was in his favor and against the other. There was n¿ proof of contributory negligence on the part of the plaintiff wife, hut there was affirmative evidence that she did all that a reasonably prudent passenger could have done to avert the accident. While there was a serious dispute as [to the causation of certain injuries which became apparent a considerable length of time after the accident, there was uncontradicted evidence that some of the claimed injuries had been sustained in the accident. In our opinion, under these circumstances, a finding that both defendants were free of negligence, of that the plaintiff wife was contributorily negligent, or that she sustained no injury at all as a result of the accident, would be against the weight of the evidence. Since a verdict for both defendants could be supported only if one lor more of such findings were made, the verdict in this case cannot stand. Beldoek, P. J., Kleinfeld, Christ, Brennan and Rabin, JJ., concur.
