Shea v. Judson

Decision Date24 July 1940
Citation283 N.Y. 393,28 N.E.2d 885
PartiesSHEA v. JUDSON et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Bena Shea against James E. Judson and others for injuries received in an automobile accident. From a judgment of the Appellate Division of the Supreme Court, entered January 1, 1940, 258 App.Div. 999, 17 N.Y.S.2d 487, which affirmed a judgment in favor of defendants Clark LaPoint and Robert L. Younger, plaintiff appeals.

Judgments reversed.

LEHMAN, C. J., dissenting. J. Clarence Herlihy, of Glens Falls, for appellant.

P. C. Dugan, of Albany, for respondents.

RIPPEY, Judge.

At about 11:30 p. m. on the night of March 21, 1938, two taxicabs collided at the intersection of Bay and Sanford streets in the city of Glens Falls. The owner of one of the taxicabs was the defendant Judson and it was being operated with his permission and consent by the driver Evans. The other taxicab was owned by defendant LaPoint and his driver was the defendant Younger. The plaintiff was a passenger in the Judson car and brought this action against the owners and the drivers of both cars. Motions were made by all defendants for nonsuit and a dismissal of the complaint. At the close of the case the court denied the motions of defendants Judson and Evans but reserved decision on the motions of LaPoint and Younger. The case was submitted to the jury as to all defendants and a verdict was found against them all. Thereupon the defendants Judson and Evans moved to set aside the verdict under section 549 of the Civil Practice Act, which motion was denied. The defendants LaPoint and Younger made a similar motion. Later an order was made by the trial judge without opinion granting both motions of the defendants LaPoint and Younger and dismissing the complaint as to them. The trial judge failed to state, in the order, the grounds on which the motion was granted. We must assume here that the trial judge held that there was no substantial evidence to go to the jury on the question of their negligence. Rules of Civil Practice, rule 224; Clarke v. Acme Bldg. Co., 143 App.Div. 269, 128 N.Y.S. 88. Without exception the court charged that all defendants admitted that the plaintiff did nothing which in any way brought about her injuries and admitted that she was free from negligence on her part. We need not consider, therefore, whether there was evidence to go to the jury on the question of her freedom from contributory negligence. The Appellate Division, by a divided court, affirmed the judgment entered upon the order setting aside the verdict and granting the motions of LaPoint and Younger for dismissal of the complaint and unanimously affirmed the order setting aside the judgment entered upon such verdict. The difference of opinion in the Appellate Division arises on the fact that a minority held that a new trial should have been granted by the trial judge. No permission was granted for leave to appeal from the unanimous order of the lower court affirming the order setting aside the judgment. It must be deemed that the appeal as taken brings up for review the question only as to whether the trial court was authorized to set aside the verdict of the jury as matter of law and dismiss the complaint. After examining the whole record we are satisfied that questions of fact were presented which required submission to the jury and that it was error to grant the motion for nonsuit and dismissal of the complaint.

The testimony as to the cause of the collision was conflicting and depended largely upon the testimony of interested witnesses the two drivers of the taxicabs. The jury was entitled to accept the whole of the testimony of both drivers or such part of the testimony of either as they believed to be...

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    • United States
    • North Carolina Supreme Court
    • 22 August 1952
    ...v. Cauley, La.App., 168 So. 783; United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 190 A. 768; Shea v. Judson, 283 N.Y. 393, 28 N.E.2d 885; Schmidt v. City Ice & Fuel Co., 60 Ohio.App. 29, 19 N.E.2d 514; Radobersky v. Imperial Volunteer Fire Dept.,368 Pa. 235, 81 ......
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    ...SEEN” AS they approached and entered the intersection ( Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315; see Shea v. Judson, 283 N.Y. 393, 398, 28 N.E.2d 885; Blasso v. Parente, 79 A.D.3d 923, 925, 913 N.Y.S.2d 306; Nuziale v. Paper Transp. of Green Bay Inc., 39 A.D.3d 833, 835, 83......
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    • U.S. Court of Appeals — Second Circuit
    • 13 August 1962
    ...automobile. Tropea testified that he did not smell any fumes. The jury had a right to believe his testimony. Cf. Shea v. Judson, 283 N.Y. 393, 396-397, 28 N.E.2d 885, 887 (1940). He could have been preoccupied with his work. The odor of gasoline could have been masked by the other odors pre......
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    • New York Supreme Court — Appellate Division
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    ...conduct of the police officer was reckless and whether such reckless conduct was a proximate cause of the accident ( cf. Shea v. Judson, 283 N.Y. 393, 398, 28 N.E.2d 885;Wilson v. Rosedom, 82 A.D.3d 970, 919 N.Y.S.2d 59;Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d ...
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