| N.Y. App. Div. | Dec 30, 1940
Action by the plaintiff-wife for damages for personal injuries and by plaintiff-husband for loss of services, as a consequence of the wife being struck by an automobile owned by the defendant. Judgment dismissing the complaint at the close of the entire case affirmed, with costs. No opinion. Hagarty, Cars-weE, Johnston and Adel, JJ., concur; Lazansky, P. J., dissents and votes to reverse the judgment and to grant a new trial, on the ground that the credibility of defendant and his principal witnesses should have been submitted to the jury. The relation of the parties; the lateness of the hour during which they were together on the night of the accident; the parking by defendant of the automobile in a parking space within the grounds of the orphanage instead of the garage attached thereto, where it had been parked on previous occasions; the aUeged inability of HiUman to operate a car; the incident of the automobile keys and the failure of defendant to investigate it, although he knew the name and the location of the aHeged locksmith, bear some earmarks of suspicion and improbability and create doubt that defendant did not consent that HiUman use his ear. That there are important considerations to the contrary does not change the question of fact into one of law.