Dowell v. Remmer
| Decision Date | 25 June 1965 |
| Citation | 261 N.Y.S.2d 746,24 A.D.2d 542 |
| Parties | Robert V. DOWELL and Maralynn A. Dowell, Appellants, v. Harry T. REMMER, Jr., and The Faxton Hospital, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Shaw J. Dallal, Utica, for appellants.
Kernan & Kernan, Utica, for respondent Hospital (James S. Kernan, Jr., Utica, of counsel).
Martin, Clearwater & Bell, New York City, for respondent Remmer (Robert J. Bell, New York City, of counsel).
Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HENRY, and DEL VECCHIO, JJ.
At the close of plaintiffs' case the court denied defendant Faxton Hospital's motion to dismiss with the statement that When the jury returned a verdict in favor of plaintiff Maralynn A. Dowell against The Faxton Hospital the court granted defendant Hospital's motion to set aside the verdict and dismissed the complaint on the ground that 'Under the circumstances, there was no competent medical proof of brain hemorrhage causing death to the infant and the resultant damages to plaintiff.' We cannot agree with the court's conclusion that the proof presented by the plaintiffs was so incredible that the jury could not have found from all of the evidence that the Hospital was negligent. There was, in fact, sharp conflict in testimony as to the manner in which plaintiff wife was treated and the jury apparently accepted the plaintiff wife's testimony as being the more credible and more persuasive. The court in its charge cast grave doubt on the value of the testimony given by plaintiff's medical expert. The quality of this proof and its probative worth were fact questions to be left to the jury's determination. In reviewing that determination 'we must take the view of the proof most favorable to the verdict.' (Hannan v. Schmitt, 18 A.D.2d 854, 236 N.Y.S.2d 107). If the court had determined that the verdict was contrary to the weight of the evidence, it should have set aside the verdict and ordered a new trial. Its dismissal of the complaint was tantamount to saying that by no rational process could the jury have found a verdict for the plaintiff.
This, we believe, was erroneous, but we do find that the verdict of the jury was against the weight of the credible evidence.
Judgment and order insofar as they dismissed the complaint of plaintiff Maralynn A. Dowell against defendant The Faxton Hospital reversed on the law and facts and a new trial granted as to said Hospital, with costs to appellant Maralynn A. Dowell to abide the event, and in all other respects judgment and order affirmed.
All concur except WILLIAMS, P. J., and HENRY, J., who dissent and vote to affirm in the following Memorandum:
In our opinion the...
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