Summary
In Strauss v. Hammer, 4 N.Y.2d 908, 174 N.Y. So.2d 659, 151 N.E.2d 91, a dismissal of the complaint at the close of the evidence was affirmed under circumstances somewhat similar to those presented to us in this case.
Summary of this case from Grossman v. WolkowitzOpinion
Argued March 25, 1958
Decided May 8, 1958
Appeal from the Appellate Division of the Supreme Court in the first judicial department, WILLIAM H. MUNSON, J.
Donald S. Sherwood and Jerome Golenbock for appellants.
Samuel E. Swiggett for respondents.
Judgment affirmed, with costs; no opinion.
Concur: Judges DESMOND, DYE, FULD, VAN VOORHIS and BURKE. Chief Judge CONWAY and Judge FROESSEL dissent and vote to reverse upon the ground that a jury question was presented as to whether defendant violated his duty to plaintiff by failing to observe whether she had alighted safely before he started his car. Plaintiff was entitled to every favorable inference that might be drawn from the evidence. There was evidence that defendant "was in a hurry to have an appointment at home"; that he stopped his car near a street corner to permit plaintiff and her husband to alight to get a taxicab; and that, just as plaintiff alighted and before the car door had closed, it struck her at the same time "the car started to move" — "the car was moving forward". The Trial Judge should not have directed a verdict after the jury disagreed. We think there should be a new trial here.