James R. Mawhinney v. Porte Manufacturing Co‪.‬

In an action to recover damages for injury to person and property, in which the defendant Porte Manufacturing Co., Inc., interposed a cross complaint against the defendant Stauffer, the said two defendants appeal as follows: (a) the defendant Porte appeals from a judgment of the Supreme Court, Kings County, entered October 14, 1963 after trial, upon a jury's verdict in the plaintiff's favor against both defendants and upon the court's decision dismissing its (the defendant Porte's) cross complaint; and (b) the defendant Stauffer appeals, as limited by his brief, from the portion of the judgment which was in the plaintiff's favor. Judgment reversed on the law and the facts, and a new trial granted with respect to both the prime complaint and the cross complaint, with costs to abide the event. In our opinion, the verdict in favor of the plaintiff was against the weight of evidence on the issue of contributory negligence (see Massey v. Matza, 11 A.D.2d 36, affd. 13 N.Y.2d 631; Axelrod v. Krupinski, 278 App. Div. 934, affd. 303 N. Y. 738). We are also of the opinion that the evidence does not support the trial court's finding that the defendants were joint tort-feasors. Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.