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• Title: Michael Yandian Et Al. v. Barbara Merlis Et Al.
• Author : Supreme Court of New York
• Release Date : January 30, 1970
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

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[34 A.D.2d 582 Page 583] This automobile accident case involves three vehicles which collided with each other while they were being driven in a southerly
direction in the center lane of the Clearview Expressway, in the Borough of Queens. One vehicle was a small panel truck, owned
by defendant Weissman and operated with his permission by his employee, defendant Lugo. Another was a small foreign car, driven
by plaintiff Michael Yandian; and his wife and infant son, his coplaintiffs, were passengers therein. The third was a new
medium size car, owned by defendant Lawrence Merlis and operated with his permission by his daughter, defendant Barbara Merlis.
The evidence adduced at the trial was that Weissman's truck, traveling at about 35 miles per hour, suddenly decelerated because
it was allegedly cut off. Plaintiffs' car, traveling at about 35 or 40 miles per hour, about 200 feet behind the Weissman
truck, unable to change lanes, could not stop before hitting the truck. The Merlis car, also traveling at about 35 miles per
hour, was about three lengths in back of plaintiffs' car when Miss Merlis, simultaneously seeing plaintiffs' brake lights
go on and their car crash into the Weissman truck, stepped on her brake and swerved to the left, but was unable to avoid hitting
plaintiffs' car. It is well-settled law that in a negligence action a jury verdict in favor of defendants should not be set
aside on the ground that it is against the weight of evidence unless it is clear from the record that the jury could not have
reached its conclusion on any fair interpretation of the evidence (Roth v. City of New York, 31 A.D.2d 817; Farber v. Smolack,
31 A.D.2d 651; Pertofsky v. Drucks, 16 A.D.2d 690). This record adequately supports the jury's findings. Nevertheless, a defendants'
verdict can and should be set aside when there is substantial error in the charge to the jury. As to plaintiff passengers,
the charge concerning contributory negligence and imputed liability was highly inadequate. This inadequacy is pointed up by
the fact that when the jury was polled, after delivering its verdict, the foreman indicated that the jurors were under the
mistaken impression that only the plaintiff driver was suing. The trial court corrected this misapprehension by instructing
the jury that the two passengers were plaintiffs also. Without further deliberation the jury immediately found for all defendants.
It is impossible, on a general verdict, to tell the basis for the jury's findings. It may well have been the charge which
was the basis for the verdict against the passengers. Therefore, in the interests of justice, the judgments as to the passenger
plaintiffs should not be permitted to stand and a new trial as to them should be granted. However, the charge was adequate
as to the plaintiff driver and therefore the judgment should be affirmed insofar as it is against him.

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