Kalin v. Robert Catino, Inc. , 245 N.Y.S.2d 141 ( 1963 )

In an action by a wife and her husband to recover damages for personal injury, loss of services, etc., the defendants appeal from an order of the Supreme Court, Queens County, dated January 14, 1963, which granted plaintiffs’ motion to set aside a jury’s verdict in favor of the defendants and directed a new trial. Order reversed, without costs; motion to set aside verdict denied; and verdict reinstated. The female plaintiff, while walking along a public sidewalk, was struck by a portion of a wooden fence which fell upon her. The case was submitted to the jury under a charge to which the plaintiffs took no exception; nor did they request a specific charge on the theory of res ipsa loquitur. Hence, the charge became the law of the ease (Buckin v. Long Is. R. R. Co., 286 N. Y. 146; Jensen v. Stauffer Chem. Co., 3 A D 2d 647; Felice V. New York Cent. & Hudson Riv. R. R. Co., 14 App. Div. 345, 349). Nor does it appear from the record that the jury could not have reached the conclusion they did on any fair interpretation of the evidence (Pertofsky v. Drucks, 16 A D 2d 690; Olsen v. Chase Manhattan Bank, 10 A D 2d 539, 544, affd. 9 N Y 2d 829). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.