Winchester v. Buff

• Decision Date: 09 November 1956
• Parties: Earle B. WINCHESTER, III, an infant, by his Guardian ad Litem, Earle B. Winchester, Jr., and Earle B. Winchester, Jr., individually, Appellants, v. Mildred BUFF and Sol Buff, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 453

156 N.Y.S.2d 453

2 A.D.2d 929

Earle B. WINCHESTER, III, an infant, by his Guardian ad

Litem, Earle B. Winchester, Jr., and Earle B.

Winchester, Jr., individually, Appellants, v. Mildred BUFF and Sol Buff, Respondents.

Supreme Court, Appellate Division, Third Department.

Nov. 9, 1956.

Segal, Dorsman, Soffer & Segal, Albany (Edward M. Segal, Albany, on the brief), for appellants.

Oliver, Scully & Delaney, Albany, for respondents.

Before FOSTER, P. J., and BERGAN, COON, HALPERN and GIBSON, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Trial Term, Albany County, denying plaintiffs' motion to set aside verdicts rendered in a negligence action.

The infant plaintiff recovered $4,000 for injuries sustained as the result of an automobile accident. The plaintiff father was awarded $900 upon his derivative cause of action. Plaintiffs urge the inadequacy of each verdict.

The principal injuries claimed were (1) cerebral injuries resulting in epilepsy and (2) a hydrocele of the spermatic cord which was successfully operated upon. The medical evidence as to the alleged epilepsy was in sharp dispute and some of it was based, in part, on history related by the child's parents. The medical testimony as to the hydrocele was not seriously controverted. The jury was entitled to find that there was no preponderance of proof of an epileptic condition related to the accident but that the accident did cause the hydrocele. On the basis of such findings both verdicts were clearly adequate.

Plaintiffs contend that certain instructions bearing on the question of liability and given pursuant to plaintiffs' request, following the charge, were so confusing as to mislead the jury and result in compromise verdicts. Plaintiffs urge, in substantiation of this theory, that after being out some hours, the jury requested that the testimony of the defendant operator be read to them and, after that had been done and they had again retired, they returned with their verdicts after a comparatively short interval, the length of which is not shown by the record. The present grounds of plaintiffs' contention that the verdicts represented a compromise were called to the trial court's attention on the argument of the motion to set aside and obviously were found unsubstantial. The record before us does not support plaintiffs' contention which, in our view, rests solely on conjecture.

Order unanimously affirmed, without costs.