Opinion
October 24, 1967
Appeal from judgments of the Supreme Court, Chenango County, entered upon jury verdicts of no cause of action dismissing the complaints on the merits. The appellants were allegedly injured as they proceeded to Graves Hill on Route 23 near Norwich when their car spun on the slippery road and was struck by respondent's vehicle which was proceeding down the hill. Appellants apparently concede that the impact occurred solely in respondent's lane. Nevertheless, appellants urge that the jury's finding of no cause of action, whether based either on the premise that respondent was not negligent or that either appellant was contributorily negligent, is against the weight of the evidence. It is their contention that respondent was negligent as a matter of law because he was traveling at an imprudent speed down a very slippery hill and because he failed to swerve or brake his automobile when he saw the Linger car in trouble 80-100 feet away. We find no merit in either contention. There was ample evidence upon which the jury could reasonably have found the driver, Warren Linger, contributorily negligent. However, since the jury also found no cause of action in the action brought by Naomi Linger, a passenger, it must have found that respondent was not negligent since there is no proof whatsoever that Naomi was in anyway contributorily negligent. We find that the issues were clearly for the jury's resolution ( Meyer v. Whisnant, 307 N.Y. 369, 373; see, also, Engle v. Ferrier, 273 App. Div. 1041, affd. 298 N.Y. 773). Judgments affirmed, without costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.