Marton v. McCasland
| Decision Date | 29 May 1962 |
| Parties | Esther MARTON and Theodore Marton, Plaintiffs-Respondents, v. Merritt J. McCASLAND, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
R. J. Burke, New York City, for defendant-appellant.
N. Gottesman, Brooklyn, for plaintiff-respondents.
Before BREITEL, J. P., and RABIN, McNALLY, EAGER and STEUER, JJ.
Order, entered March 3, 1961, insofar as it sets aside the verdict of the jury in favor of the defendant and grants a new trial upon the cause of action of the plaintiff Esther Marton to recover for her alleged personal injuries and upon the derivate cause of action by her husband, plaintiff Theodore Marton, to recover damages for her alleged injuries, unanimously reversed, on the law, the facts, and in the exercise of discretion, and the verdicts reinstated, and judgment directed thereon in favor of the defendant, with $20 costs and disbursements in favor of the defendant against the plaintiffs. It is settled that a jury verdict in favor of defendant may not be set aside unless it plainly appears that the evidence so preponderates in favor of the plaintiff that the verdict for the defendant could not have been reached on any fair interpretation of the evidence. (Areson v. Hempstead Bus Corp., 14 A.D.2d 790, 220 N.Y.S.2d 462; Musumeci v. Pillsbury Mills, Inc., 12 A.D.2d 941, 942, 201 N.Y.S.2d 975, 976; Holpp v. Carafa, 8 A.D.2d 617, 185 N.Y.S.2d 63; Scheuerman v. Knapp Coal Co., Inc., 238 App.Div. 874, 875, 263 N.Y.S. 353, 354; Meyers v. Hines, 199 App.Div. 594, 595, 191 N.Y.S. 773, 774.) Here, the credibility of the testimony of the defendant driver was for the jury, and his testimony as to the manner and the circumstances of the happening of the accident, fairly interpreted, amply supports the finding that he was free from negligence. Thus, the verdict for the defendant was conclusive and the trial court was in error in setting it aside upon the ground that in the court's opinion the defendant was 'guilty to a degree of negligence', thereupon reaching the conclusion that the verdict was contrary to the weight of the evidence. Also, it should be noted that the finding of contributory negligence on the part of the plaintiff driver, implicit in the verdict of the jury and supported by the evidence, would in any event defeat his right of recovery upon his alleged derivative cause of action for loss of services and medical expenses of his wife. (See 15...
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Kahn, In re
...so preponderates the other way that they could not have been rendered on any fair interpretation of the evidence. Marton v. McCasland, 16 A.D.2d 781, 228 N.Y.S.2d 756; Salvitelli v. Janusz, et al., 19 A.D.2d 886, 244 N.Y.S.2d 338. In the instant case it cannot be said that any fair interpre......
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Bartlett v. State
...court could not have reached the verdict it did on any fair interpretation of that evidence (Lee v. Lesniak, supra; Marton v. McCasland, 16 A.D.2d 781, 228 N.Y.S.2d 756; Rapant v. Ogsbury, 279 App.Div. 298, 109 N.Y.S.2d In the instant case there was, in my opinion, more than sufficient proo......
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di Suvero v. Gem Window Cleaning Co.
...credibility and conflicting evidence and inferences in favor of the plaintiff as against the moving defendants (Marton v. McCasland, 16 A.D.2d 781, 782, 228 N.Y.S.2d 756, 757, and the cases therein cited; Fischer v. New York Certral Railroad Company, 188 Misc. 72, 73, 66 N.Y.S.2d 557, 559, ......
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Patusco v. Prince Macaroni, Inc.
...131 Me. 14, 158 A. 694 (Sup.Jud.Ct.1932); Miller v. Rankin, 10 A.D.2d 695, 198 N.Y.S.2d 1 (1st Dept. 1960); Marton v. McCasland, 16 A.D.2d 781, 228 N.Y.S.2d 756 (1st Dept. 1962). We emphasize that Kimpel v. Moon did not say a wife has no claim against a tortfeasor for medical treatment and ......