Sacks v. Philips , 40 N.Y.S.2d 125 ( 1943 )

No opinion. Close, P. J., Hagarty, Carswell and Taylor, JJ., concur; Adel, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: This is not an ordinary case of the meeting of two automobiles, where the jury is to be instructed to determine whether either or both of the operators were negligent. Something more than the usual charge should have been made in view of the evidence of defendant Nachamkin that he caused'the situation wherein the appellant Philips could only be cast in damages if, when confronted with the situation thus caused by the eodefendant Nachamkin, he did not act as a reasonably prudent person would or should have acted, and by reason of his conduct contributed to the accident. In that respect the charge to the jury was inadequate and for that reason there should be a new trial.