Opinion
November 20, 1929.
Appeal from Supreme Court of Chemung County.
Mortimer L. Sullivan, for the appellant.
Mandeville Personius [ Leo Waxman and A.H. Harpending of counsel], for the respondent.
The jury returned a verdict in favor of the plaintiff. This the trial court has set aside for lack of clarity in the charge. The appeal is from that order. It should be affirmed.
No other question is before us at this time, but as another trial may be had, a discussion of our views on the merits, as the case now stands, may be helpful. Plaintiff administrator, who brings this action to recover for the death of his wife, is the father of defendant. The decedent was the mother of defendant. It is alleged she was killed because defendant drove the automobile in which she was riding as a guest in a negligent manner. The evidence as to the accident, given by the one surviving passenger, was that while proceeding on a wet concrete pavement at an ordinary rate of speed, the automobile skidded, for some unexplained reason, and struck the guard rail, throwing the decedent out with such force that death resulted. The defendant is not shown to have been guilty of any negligent act. The doctrine of res ipsa loquitur does not apply. No appeal was taken by the defendant from the denial of his motion for a nonsuit. We cannot go further than to affirm the order setting aside the verdict.
The order should be affirmed, with costs.
VAN KIRK, P.J., DAVIS, WHITMYER, HILL and HASBROUCK, JJ., concur.
Order affirmed, with costs.