Dubkow v. Standard YNE Burner Corp.

Action by appellant Frieda Dubkow to recover damages for personal injuries alleged to have been sustained when she was struck by a motor truck owned by the corporate respondent and operated by its employee, the individual respondent, and by her husband for medical expenses and for loss of services. After having deliberated for about five hours, the jury reported that it was hopelessly deadlocked. The court discharged the jury and dismissed the complaint on a motion made at the end of the case, upon which decision had been reserved. Judgment reversed on the law and new trial granted, with costs to abide the event. On this record whether the respondents were negligent and the appellant wife was guilty of contributory negligence were questions for the jury. MacCrate, Acting P. J., Schmidt and Beldock, JJ., concur; Murphy and Ughetta, JJ., dissent and vote to affirm the judgment, with the following memorandum: The proof was insufficient to support any inference that the truck came in contact with appellant wife, or that if such contact was had it was due to the negligent manner in which the truck was operated. Proof is completely lacking that there was a contact between said appellant and the truck. There were no marks on the truck to indicate that it hit her, and it was uneontradieted that the truck had on it a film of dust and grease, some of which would have been found on her clothing had she been hit by the truck. To hold the respondents guilty of negligence would be sheer speculation. The Trial Justice was justified in dismissing the complaint when the jury disagreed. He had already indicated he would set aside a verdict in favor of appellants. (Wank v. Ambrosino, 307 N. Y. 321.)