London Guarantee & Accident Co. v. Force

McAvoy, J.

On a former appeal from a judgment rendered in favor of the defendant following a verdict directed by the learned court there was an unanimous reversal and a new trial was ordered with an opinion holding that the jury might reasonably have concluded from the evidence that the defendant’s truck collided with the truck on which the decedent was working, since that truck was being unloaded and was not in motion (208 App. Div. 210).

We find that the evidence at this trial was substantially the same as that presented by the plaintiff on the former trial, and hence as a matter of law the facts proven constituted a proper case for submission to the jury.

While the learned trial court submitted the ease to the. jury and the jury found for the plaintiff, nevertheless the verdict was set aside upon motion of the defendant, the order reciting that the verdict is contrary to the evidence and contrary to law.

As pointed out, we heretofore held that the evidence established facts from which it might be legitimately inferred that the defendant was negligent and thus raised an issue for the jury. There was no contradiction of this proof by any witness for the defendant and the circumstance that plaintiff’s witness had signed a statement at one time prior to the trial contradicting his version of the accident, as given in the testimony here, went to his credibility which was solely a jury question.

We think it was error, therefore, to set the verdict aside, and accordingly the ordfer appealed from should be Reversed, with costs, and the verdict reinstated.

Dowling, P. J., Finch, Martin and O’Malley, JJ., concur.

Order reversed, with costs, and verdict reinstated.