Lugert v. Cohen ( 1950 )

Appeals by each of the defendants from judgments rendered against them and in favor of the plaintiff based on the verdicts of a jury following a trial in the Supreme Court, Columbia County, and from orders denying motions for a new trial. The plaintiffs were passengers in an automobile operated by the defendant Hawver and were injured when it skidded into the defendant Cohen’s ear which was standing in the right lane of a three-lane highway. The record is entirely barren of any evidence to justify a finding of negligence on the part of the defendant Cohen which was or could have been a proximate cause of the accident. The judgments therefore cannot stand against him or against his employer, the defendant Senak Co. As to the defendant Hawver, the evidence amply supports the verdicts and the judgments should be affirmed. Judgments and orders reversed, on the law and facts, in both eases as against the defendants, Sam Cohen and the Senak Co., and the complaints dismissed as against them, without costs. Judgments and orders in both actions affirmed as against the defendant, Hawver, without costs. Foster, P. J., Brewster, Deyo and Coon, JJ., concur; Heffernan, J., concurs in the following memorandum: I concur as to the affirmance of the judgments and orders against defendant Hawver. I dissent, however, as to the reversal of the judgments and orders against defendants Cohen and Senak Co., and I vote to affirm on the ground that only a question of fact is presented as to whether or not Cohen was 'negligent in parking his car in the manner in which he did in view of the weather conditions at that time and the extent of travel on that particular highway.