Lyons v. Arden De Vore
| Decision Date | 05 June 1975 |
| Citation | 368 N.Y.S.2d 887,48 A.D.2d 943 |
| Parties | Eileen A. LYONS, Appellant, v. R. ARDEN DE VORE, as Administrator of the Estate of Judith A. Amundson, Deceased, Respondent. Phillip KIRK, as Administrator of the Estate of Stephen A. Kirk, Deceased, Respondent, v. Eileen A. LYONS et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Louis George Rudd, Farmingdale (Arthur N. Seiff, New York City, of counsel), for plaintiff-appellant Eileen A. Lyons.
Thaler & Thaler, Ithaca (Manley H. Thaler, Ithaca, of counsel), for respondent R. Arden De Vore and defendant-appellant R. Arden De Vore in the second action.
Wesley E. McDermott, Ithaca, for respondent Phillip Kirk.
Personius, Cramer, Mustico & Sullivan, Elmira (Ralph S. Cramer, Elmira, of counsel), for defendants-appellants Eileen A. and John Lyons.
Before GREENBLOTT, J.P., and MAIN, LARKIN, KANE and REYNOLDS, JJ.
Appeals from judgments of the Supreme Court, entered March 13, 1974 and April 4, 1974 respectively in Tompkins County, upon verdicts rendered at a Trial Term and an order of the same court denying defendants' motions to set aside the verdicts.
On September 29, 1972, at approximately 5:00 P.M., on a two-lane highway near Canandaigua, New York, a car operated by Eileen Lyons in a westerly direction, collided with a car operated by Judith Amundson, with Stephen Kirk as a passenger, in an easterly direction. Judith Amundson and Stephen Kirk were killed in the accident and Eileen Lyons testified that she had no recollection of the happening of the accident. The action brought by Eileen Lyons against the estate of Judith Amundson and the action brought on behalf of Phillip Kirk as Administrator of Stephen Kirk against Eileen Lyons et al., and the estate of Judith Amundson were tried jointly and a verdict was returned in favor of plaintiff Kirk against both defendants in the sum of $30,000 with the negligence apportioned 30% To the driver Lyons and 70% To the driver Amundson and a verdict of no cause for action in the case of Eileen Lyons.
The plaintiff Lyons appeals the verdict as against the weight of the evidence and on the further grounds of erroneous rulings by the trial court. The defendant De Vore, as administrator of the estate of Judith Amundson, appeals from the verdict in favor of plaintiff Kirk as being excessive.
The sole witness to the accident was driving a truck in an easterly direction behind the Amundson vehicle and testified that the Amundson vehicle, a second or split-second before the accident, veered into the lane of the Lyonscar. The state police officers who investigated the accident placed the point of impact approximately 12 inches over the center line and into the Lyons lane of traffic. The state police officer estimated the width of the Lyons vehicle to be six to seven feet and the point of impact to be on the front of that vehicle. Photographs of the Lyons vehicle were admitted into evidence. The investigating officers also testified as to gouge marks found on both sides of the center line of the highway.
Although the one eyewitness testified that the Amundson vehicle veered into the Lyons lane of traffic, there was enough evidence from the photographs and the gouge marks and the testimony of the police from which the jury might conclude that the Lyons vehicle was also over the center line. Such questions should be 'left open to factual judgments of the jury where the record shows a skid, or the explanation for a skid, or a Car on the wrong side of the road, or the explanation of why it is there' (Pfaffenbach v. White Plains Exp. Corp., 17 N.Y.2d 132, 136, 269 N.Y.S.2d 115, 117, 216 N.E.2d 324, 325; emphasis supplied).
A verdict such as the instant one can only be set aside if the evidence is so preponderant in the plaintiff's favor that the jury could not have reached its conclusion on any fair interpretation of the evidence (Marton v. McCasland, 16 A.D.2d 781, 228 N.Y.S.2d 756). On this record, the fair interpretation of the evidence can support this verdict. Therefore, we find no reason to disturb the trial court's decision not to set aside the jury's determination (Bush v. Pearson, 17 A.D.2d 1012, 233...
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...387 N.Y.S.2d 108 ... 39 N.Y.2d 971, 354 N.E.2d 848 ... Eileen A. LYONS, Appellant, ... R. Arden DE VORE, as Administrator of the Estate of Judith ... A. Amundson, Deceased, Respondent ... Phillip KIRK, a Administrator of the Estate of Stephen A ... Kirk, Deceased, Respondent, ... Eileen A. LYONS et al., Appellants, et al., Defendant ... Court of Appeals of New York ... July 1, 1976 ... ...