Izzo v. Jennings ( 1946 )

Appeal from an order of the Supreme Court, at a Trial Term for Albany County, setting aside a verdict of no cause of action in a negligence case. The action arose out of a collision between two motor vehicles at a street intersection in the city of Cohoes. The trial justice set aside the verdict for the defendant because on the request of defendant’s counsel he charged the jury that if they found “ from the undisputed evidence in this case that this accident happened in any other manner other than what has been testified to here by the plaintiff, that their verdict must be for the defendant.” As the trial justice subsequently found, this was erroneous. Plaintiff was entitled to have the jury decide the issue of negligence on all of the evidence (Kellegher v. Forty-second St, B. B. Co., 171 N. Y. 309; Callahan v. New York Bailways Corp,, 235 App. Div. 219). Order affirmed, with $10 costs and disbursements on appeal to respondent.. All concur.