Tagliaferri v. Spencer ( 1944 )

Defendant appeals from a judgment against him and in favor of the plaintiff for the sum of $6,841, entered upon the verdict of a jury in the Chemung County Clerk’s office on the 17th day of May, 1943, and from an order denying defendant’s motions to set aside the verdict and for a new trial. The judgment was for recovery of damages for personal injuries sustained by plaintiff when, while walking across College Avenue at or near its intersection with Thurston Street in the city of Elmira, he was struck by an automobile owned and operated by defendant. The trial jury was, by agreement, selected in a room near the trial courtroom when another trial was in progress before the Trial Justice. The rulings upon the allowance of certain challenges made to prospective trial jurors and which are questioned by appellant, exist only in the joint assumption of counsel as to what the rulings would have been if the matter had been presented to the Justice presiding. As such they are not reviewable on appeal. The evidence was such as to constitute the question of plaintiff’s contributory negligence one of fact and the jury’s finding that it was nonexistent had sufficient evidence to support it. The verdict was not for excessive damages. Judgment and order affirmed, with costs. Hill, P. J., Bliss, Heffernan, Schenek and Brewster, JJ., concur. [See post, p. 1007.]