Quirk v. Worden (190 A.D. 773, 1920)

Woodward, J.:

This is an appeal from an order of the court granting defendant’s motion for a new trial, in an action for negligence, on the ground that the verdict was contrary to the evidence. There is no dispute that the defendant is the owner of a motor car which collided with the plaintiff, producing personal injuries for which the jury has given a verdict .for $1,800. The defendant was called as a witness in behalf of the plaintiff, and testified to his ownership of the car,- which would, of course, establish a prima fade case of responsibility on his part for the accident. Upon cross-examination, however, he testified that he did not know that any one was driving the car on the day of the accident; that Vernice Nichols, who was concededly driving the car at the time of the accident, was not in his employ on the day of the accident; that he did not see Nichols on that day, and that he did not know of the accident until the day afterward, when his employee told him that Nichols had had the car and had wrecked it. He was supported in this by apparently fair and disinterested witnesses, who testified that Nichols came to the defendant’s garage in defendant’s absence and asked the defendant’s salesman to loan him a car to move some household goods, and that he was permitted to take the car — a truck — for this purpose.

We are of the opinion that the verdict is clearly against the weight of evidence and that the learned trial court properly granted the motion of defendant for a new trial, the cases of Potts v. Pardee (220 N. Y. 431) and Rose v. Balfe (223 id. 481) being sufficient authority for such action.

The order appealed from should be affirmed.

All concur, except Kiley, J., not voting.

Order affirmed, with costs.