Hendrickson v. Carter , 388 N.Y.S.2d 674 ( 1976 )

In a negligence action to recover damages for personal injuries, arising out of an intersectional two-car collision, defendant Gelfand, administrator of the estate of Hyman Auster, appeals from an interlocutory judgment of the Supreme Court, Queens County, entered March 24, 1976, which (1) is in favor of plaintiff and against him, upon the trial court’s direction of a verdict at the close of the evidence, at a jury trial limited to the issue of liability only, and (2) is in favor of defendant Carter and against plaintiff, upon a jury verdict. Interlocutory judgment reversed, on the law and in the interests of justice, and new trial granted as to all parties and causes, with costs to abide the event. No fact findings have been reviewed. Conflicting testimony was presented as to whether the defendant Carter was speeding when the collision occurred. The Trial Judge directed a verdict against defendant Gelfand because of uncontroverted evidence that his intestate, Auster, who died of unrelated causes, passed a red light. In our opinion it was reversible error to direct a verdict against defendant Gelfand. Had the jury been allowed to determine whether Auster’s or Carter’s negligence was the proximate cause of the accident, it may have found Auster free of liability. Cohalan, Acting P. J., Rabin, Shapiro and O’Connor, JJ., concur.