C. A. Terpening Trucking Co. v. City Fulton Et Al‪.‬

Memorandum: The owners of both vehicles involved in this action sued for damages sustained in an intersection collision. The jury returned a verdict of no cause on both the claim and counterclaim, finding "both [drivers] were at fault". The trial court set aside the verdict and directed a verdict for plaintiff. The trial court could not direct a verdict unless viewing the evidence in the light most favorable to defendant it determined that the jury could not find plaintiff guilty of contributory negligence by any rational process (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Lee v. City Brewing Corp., 279 N. Y. 380; Carciofolo v. United States Fire Ins. Co., 38 A.D.2d 672). While the testimony of defendants driver was confused and at times contradictory, he did testify that he stopped at the yield sign placed at the intersection, looked both ways and entered the intersection when plaintiffs truck was 400 feet to the south. After entering the intersection defendants vehicle turned south and the driver claims that the accident occurred entirely on his side of the road. This was sufficient to create a question of fact for the jury. The trial court should not have directed a verdict for plaintiff. However, we should not reverse the trial courts decision to set aside the verdict as contrary to the weight of evidence unless its action was unreasonable (Mann v. Hunt, 283 App. Div. 140). Under the circumstances of this case we agree with the trial courts decision setting aside the verdict as against the weight of the evidence. There should be a new trial.