Opinion
April 16, 1962
In a negligence action to recover damages for personal injuries, the defendants appeal from a judgment of the Supreme Court, Queens County, entered June 1, 1961, after trial, on a jury's verdict in favor of plaintiff against both defendants. Judgment reversed on the law and the facts, without costs, and complaint dismissed. Plaintiff failed to show, either by direct proof or by circumstantial evidence, her freedom from contributory negligence. No presumption that she was free from blame arises from the mere happening of an injury and from proof that defendant was, or might have been, negligent ( Weston v. City of Troy, 139 N.Y. 281, 282). When, as in this case, circumstances point as much to the negligence of the plaintiff as to its absence, or point in neither direction, a nonsuit should be granted ( Wiwirowski v. Lake Shore Michigan So. Ry. Co., 124 N.Y. 420, 425). Beldock, P.J., Ughetta, Christ, Hill and Hopkins, JJ., concur.