Opinion
January 13, 1969
Appeal from an order of the Supreme Court, Rensselaer County, setting aside a jury verdict of no cause of action and directing a new trial as to respondent Florine M. Sedgwick. Florine Sedgwick, a minor, was injured when on October 7, 1960 her father's automobile, in which she was riding as a passenger, collided with a tractor-trailer owned by J.D. Maroney, Inc., and driven by Frederick A. Olmstead. At the trial a sharp conflict arose as to whether there was any negligence on the part of the driver of the tractor-trailer which contributed to the accident; appellants asserting that the collision was due solely to the negligence of Florine Sedgwick's father. After an explicit charge by the Trial Judge as to the different responsibilities of a driver and a passenger the jury returned separate unanimous verdicts of no cause of action against both Florine and her father. The Trial Judge denied a motion to set aside the verdict as to the father's cause of action but granted it as to Florine's and the instant appeal ensued. We can find no basis to support the Trial Judge's determination to set aside the jury's verdict. A verdict should not be set aside "unless the preponderance in favor of the plaintiff was so great that the finding in favor of the defendant could not have been reached upon any fair interpretation of the evidence". ( Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, 544, affd. 9 N.Y.2d 829.) Here the issues of fact and credibility were clearly and properly presented to the jury and we are unable to state that the jury could not on a fair interpretation of the evidence established reach the conclusions it arrived at ( Lynch v. Dillon, 29 A.D.2d 884). Nor can we find any prejudice in the record upon which to direct a new trial in the "interest of justice". Any claim of prejudice is sheer speculation. Order reversed, and verdict and judgment reinstated, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Reynolds, J.