Opinion
January 26, 1942.
Action to recover damages for personal injuries suffered by plaintiff in a fall on a sidewalk, claimed to have been caused by a snow and ice condition thereon. Order setting aside the verdict of a jury in favor of the defendant reversed on the law and the facts, motion denied, and verdict reinstated, with costs to the appellant. The setting aside of the verdict for the defendant may not be justified on the proof herein. The setting aside of a defendant's verdict in a tort case as against the weight of the evidence may not be justified "unless it can be plainly seen that the preponderance in favor of the plaintiff is so great that the jury could not have reached the conclusion they did upon any fair interpretation of the evidence." ( Solkey v. Beyer, 238 App. Div. 809; Seltzer v. Coney Island Gravesend R. Co., 237 id. 854; Taylor v. Teves, 243 id. 567; Dashnau v. City of Oswego, 204 id. 189, 192; Shepard v. Peck, 254 id. 421; Ferranti v. Vroman, 259 id. 782.) There were elements in the plaintiff's proof which the jury was free to consider in connection with defendant's proof in arriving at a finding against the plaintiff on either or both issues of negligence and contributory negligence. Under the rule applicable to defendants' verdicts in tort cases, the setting aside of this verdict was, in effect, a substitution of the conclusions of the trial court on the evidence for those reached by the jury. ( Dashnau v. City of Oswego, supra.) Lazansky, P.J., Hagarty, Carswell, Adel and Taylor, JJ., concur.