Opinion
March 8, 1971
In a negligence action to recover damages for personal injuries, defendant Schacker appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Richmond County, entered July 7, 1970, as is in favor of plaintiff against him, upon the trial court's setting aside of the jury verdict insofar as it was in favor of said defendant and directing a verdict against said defendant. Judgment reversed insofar as appealed from, with costs; plaintiff's motion for a directed verdict against defendant Robert Schacker denied; and verdict reinstated as to said defendant. This action arose out of an intersection collision between a vehicle owned and operated by defendant Roland, in which plaintiff Scholar was riding as a passenger, and a vehicle owned and operated by defendant Schacker. The jury returned a verdict against Roland only and in favor of plaintiff and Schacker. The trial court, however, set aside the verdict as to Schacker, holding as a matter of law that both defendants were negligent, and directed that judgment be entered against both of them notwithstanding the verdict. We believe this was error. Under the circumstances here, including the trial court's charge, there was ample basis for the jury to find that only one driver was responsible for the accident. Clearly, a question of fact was presented and it cannot be said that the jury could not have reached its verdict on any fair interpretation of the evidence (see Ryder v. Cue Car Rental, 32 A.D.2d 143, 146-148; Feldman v. Cain, 29 A.D.2d 965). Hopkins, Acting P.J., Munder, Martuscello, Latham and Brennan, JJ., concur.