McMurren v. Carter

— In a negligence action to recover damages for personal injuries, etc., defendants appeal from an order of the Supreme Court, Kings County, dated March 29, 1974, which granted plaintiff’s motion to set aside a jury verdict in defendants’ favor. Order affirmed, with costs to abide the event of the new trial. On this record it is our view that the verdict in favor of defendants could not have been reached upon any fair interpretation of the evidence (Olsen v. Chase Manhattan Bank, 10 A D 2d 539). We note, however, that there was no error in charging the jury concerning the doctrine of emergency. Latham, Acting P. J., Shapiro, Cohalan and Brennan, JJ., concur; Benjamin, J., dissents and votes to reverse the order and reinstate the verdict, with the following memorandum: The evidence did not preponderate so greatly in plaintiff’s favor that a finding in favor of defendants could not have been reached upon any fair interpretation of the evidence.