De Lizia v. Beavers

In a negligence action to recover damages for personal and property injuries, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County, dated November 1, 1972, as (1) granted plaintiff’s motion to set aside a jury verdict in defendant’s favor on the issue of liability and (2) ordered a new trial. Order affirmed insofar as appealed from, with costs to abide the event of the new trial. In our opinion, Trial Term properly exercised its discretion, since the jury could not have reached its conclusion on any fair interpretation of the evidence (Olsen v. Chase Manhattan Bank, 10 A D 2d 539, affd. 9 N Y 2d 829). The record clearly established defendant’s negligence and the jury, by no rational process, could have found plaintiff guilty of contributory negligence (Stevens v. Clark, 2 A D 2d 791; Hamby v. Bonventre, 36 A D 2d 648; Coppola v. Bisedorph, 37 A D 2d 680). Munder, Acting P. J., Latham, Shapiro, Gulotta and Benjamin, JJ,, concur.