Weeks v. Beardsley

• Decision Date: 23 October 1969
• Citation: 304 N.Y.S.2d 568,33 A.D.2d 607
• Parties: Madelene R. WEEKS, as Administratrix of the Estate of Raymond H. Weeks, Deceased, Appellant, v. Beverly J. BEARDSLEY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 568

304 N.Y.S.2d 568

33 A.D.2d 607

Madelene R. WEEKS, as Administratrix of the Estate of Raymond H. Weeks, Deceased, Appellant, v. Beverly J. BEARDSLEY et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Oct. 23, 1969.

Eaton & Mugglin, Paul F. Eaton, Walton, for appellant.

Levene, Gouldin & Thompson, Robert H. Reeder, Binghamton, for respondent Beardsley.

Kramer, Wales & Robinson, Philip J. Kramer, Binghamton, for respondent Avon Products, Inc.

Before HERLIHY, P.J., and REYNOLDS, STALEY, and COOKE, JJ.

COOKE, Justice.

Appeal (1) from a judgment of the Supreme Court in favor of defendants, entered January 24, 1968 in Chenango County, upon a verdict of no cause of action rendered at a trial term, and (2) from an order of said Court entered February 23, 1968, which denied plaintiff's motion to set aside the verdict.

Raymond H. Weeks, employed to put joists between concrete forms by the joint venture contractors reconstructing route 12 between Greene and Brisben, died from injuries received on October 30, 1964 when struck by an automobile operated by Beverly J. Beardsley proceeding southerly on said highway in the area of a paving machine and spreader.

Jury verdicts should not be set aside merely because the Trial Judge, or an appellate court on appeal, would have decided differently, but, rather, only in cases where the verdict seems palpably wrong and it can be plainly seen that the preponderance is so great that the jury could not have reached their conclusion upon any fair interpretation of the evidence (Braun v. Consolidated Edison Co. of N.Y., 31 A.D.2d 165, 171--172, 296 N.Y.S.2d 61, 68; Smith v. McIntyre, 20 A.D.2d 711, 247 N.Y.S.2d 361; 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 737; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 4404.09). Here, it cannot be said that clearly the jury acted mistakenly on the contributory negligence issue since there was evidence from which it could be found that the accident occurred shortly after noon, when the lunch break normally began, that decedent at the time was by the paver and not working on concrete forms, that he was standing on the hard surface lane facing the paving machine and not looking for approaching traffic, that at the time he was struck he was either drinking water or lighting a cigar on a windy day and that a fellow worker about ten feet distant yelled to Weeks to watch out just before contact. (S...