29 A.D.2d 595 | N.Y. App. Div. | 1967
Appeal from a judgment of the Supreme Court, Schenectady County, entered on a jury verdict of no cause of action and from an order which denied a motion to set aside the verdict pursuant to CPLR 4404. Catherine Waldbillig seeks to recover for personal injuries and her husband Frederick Waldbillig for medical expenses and loss of services allegedly arising when the parked vehicle in which Catherine Waldbillig was seated was struck by a vehicle owned by Edward C. Wetsell and operated by Mary M. Poitras (now Mary M. Wetsell). Respondents having admitted liability in open court the only issue presented to the jury was that of damages. As to this issue appellants offered considerable testimony, including medical proof, that as a result of the accident Catherine Waldbillig sustained injury to her cervical spine. In rebuttal respondents offered no medical testimony and instead attempted to refute appellants’ evidence primarily by indicating that the Wetsell vehicle was traveling only 10 miles per hour at impact and that only four weeks after the accident Catherine Waldbillig took a four-week trip to Europe with her family. Unquestionably the determination of the jury as the arbiter of the facts must be given great weight and, of course, it did not have to accept the testimony of the appellants as to the extent of the injury at face value. However, it is patently manifest on the record as developed that some injury was sustained and, accordingly, the jury’s verdict to the contrary cannot be permitted to stand. (See e.g., Jensen v. Casale, 22 A D 2d 994.) Judgment and order reversed, on the law and the facts, with costs to appellants, and a new trial on the issue of damages ordered. Herlihy, J. P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.