SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
January 16, 1969
MABEL A. CROSSETT, AS ADMINISTRATRIX OF THE ESTATE OF LOUIE F. CROSSETT, DECEASED, APPELLANT,
MARY E. NATALI ET AL., RESPONDENTS
Appeal from amended judgment, and from order, of Jefferson Trial Term dismissing complaint; order denied motion for a new trial.
Bastow, P. J., Goldman, Del Vecchio, Marsh and Henry, JJ.
Memorandum: The judgment should be reversed because the verdicts are against the weight of the evidence and also because of errors in the trial court's instruction to the jury and in receiving evidence. The court erred in charging that there was sufficient evidence for the jury to find that the impact between the vehicles lacked enough force to cause the plaintiff's vehicle to leave the highway and to find that the collision was not the proximate cause thereof. The question of the sufficiency of the evidence should have been left for the jury's determination. There being no proof that defendant's automobile went off the pavement onto the shoulder of the highway the trial court erroneously received evidence over plaintiff's objection respecting a ridge at the edge of the pavement and its effect on control of an automobile passing over it.
Judgment and order unanimously reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.
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