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Wood v. Webster Paper & Supply Co., Inc.

Supreme Court of New York, Appellate Division

May 19, 1954

KENNETH L. WOOD, Respondent,
v.
WEBSTER PAPER & SUPPLY CO., INC., Appellant. KENNETH L. WOOD, Respondent,
v.
ROBERT J. LAFFIN, as Executor of DONALD L. BRIGGS, Deceased, Appellant. JEANETTE E. WOOD, Respondent,
v.
WEBSTER PAPER & SUPPLY CO., INC., Appellant. JEANETTE E. WOOD, Respondent,
v.
ROBERT J. LAFFIN, as Executor of DONALD L. BRIGGS, Deceased, Appellant.

Page 170

APPEALS (1) from judgments of the Supreme Court in favor of plaintiff Kenneth L. Wood for $55,234.30 and in favor of plaintiff Jeanette E. Wood for $15,191.50, entered November 12, 1953, in Essex County, upon a verdict rendered at a Trial Term (GIBSON, J.), and (2) from orders of said court entered February 1, 1954, denying motions by defendants-appellants to set aside the verdict and for a dismissal of the complaint.

COUNSEL

F. Walter Bliss and C. W. McCormick for appellants.

John T. DeGraff and Harold R. Soden for respondents.

BERGAN, J.

On a late February afternoon in 1953, two vehicles collided on a curve in an Adirondack highway between Saranac Lake and Lake Placid. Donald Lyman Briggs, the driver of a Nash car moving westerly toward Saranac Lake was killed; the driver of a Studebaker automobile moving easterly, Kenneth L. Wood, and his wife, Jeanette E. Wood, riding with him, were injured. It was snowing intermittently; the surface of the road was slushy on the sides but the center was relatively free of ice and snow.

The surviving injured parties have recovered verdicts against the estate of Briggs and against his employer, the Webster Paper and Supply Company, the owner of the car he was driving. It is suggested by appellants that the verdicts for plaintiffs are against the weight of the evidence and we address ourselves to that first.

There were no witnesses to the collision except the two injured plaintiffs; and where the only available narrative of events

Page 171

must come from witnesses who are pursuing a purpose to get a verdict on one side of the litigation, and the one person who could answer the narrative on the other is dead, something more than the literal words must be considered in approaching a fair consideration of the weight of evidence.

A court is not necessarily bound to regard a verdict consistent with the weight of the evidence because one man survives to tell what happened and death has stopped all narration by the other. This very presence and absence of available proof is one relevant element to be considered in determining whether the verdict is consistent with the weight of evidence. Demonstrated physical events, and a knowing judicial sense of probability, assume a proportion required by the imbalance of other descriptive testimony.

The testimony of the two plaintiffs was quite simple. In proceeding easterly they had the outside of the curve to their right; the deceased driver came over to their side of the road; Mr. Wood moved on to the shoulder of the road on his right; but the accident nevertheless happened when the Nash car continued on to strike the Studebaker; the deceased was going fast, the survivors slow.

We look, then, to the physical residuum left after the collision for help in evaluating the narrative testimony. Immediately after the accident the car that had been driven by the decedent Briggs was on its right side but it was facing toward the center of the road, its rear wheels off on the shoulder and its front bumper four feet from the road center. It thus occupied a part of the westbound lane of the pavement and substantially all of the shoulder.

The Studebaker was on its right side of the road facing in the same direction in which it had been proceeding. Its left wheels were on the pavement; its right wheels on the shoulder of the road ...


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