Nossavage v. Maday , 139 N.Y.S.2d 861 ( 1955 )

Judgment insofar as it is in favor of plaintiff Elizabeth Nossavage and against defendant Alexander Nossavage affirmed, with costs; judgment insofar as it is in favor of plaintiff Elizabeth Nossavage and against defendant John W. Maday and judgment insofar as it is in favor of defendant Alexander Nossavage and against plaintiff John Maday for no cause of action and order denying John Maday’s motion for a new trial reversed, on the law and facts, and a new trial granted, with costs to appellant Maday to abide the event; judgment insofar as it is in favor of plaintiff Maday dismissing the counterclaim of defendant Alexander Nossavage affirmed, without costs. Memorandum: We think the finding of the jury that appellant Maday was negligent is against the weight of the evidence. The proof shows that the Nossavage ear was attempting to pass the Maday car and that both were traveling in an easterly direction. Upon those facts it was error for the court to refuse to charge, on request: “that if the Jury finds that the contact between the Nossavage and the Maday automobiles was on the south side of Porter Road, their verdict in the Elizabeth Nos-savage ease must be for no cause of action in favor of John Maday.” While the instructions to the jury when they returned to the courtroom and asked for instructions were technically correct, we think they should have been amplified. We find little, if any, evidence in this record upon which the jury might find Maday had started to make a left turn. All concur. (Appeals from a judgment of Niagara Trial Term in favor of plaintiff Elizabeth Nossavage against both defendants in the first action, and for no cause of action in favor of defendant Nossavage and against plaintiff Maday and dismissing the counterclaim of defendant Nossavage against the plaintiff Maday in the second of consolidated automobile negligence actions. The order denies Maday’s motion for a new trial.) Present — McCurn, P. J., Vaughan, Piper, Wheeler and Van Duser, JJ.