Smith v. American Steel & Wire Co.

Plaintiff’s intestate was run down and killed by an automobile owned by respondent and operated by its employee, the defendant Hynes. In this action for damages resulting from the intestate’s death, the respondent denied that at the time of the accident, defendant Hynes was operating the car with the express or implied permission of the respondent. The jury returned a verdict against both defendants, and the trial court set aside the verdict against respondent as against the weight of the evidence. Order setting aside verdict as against respondent and granting a new trial unanimously affirmed, with costs. The issues of negligence and contributory negligence were for the jury, and the evidence on those issues was adequate to support the verdict. We agree with the trial court, however, that the verdict against the respondent was against the weight of the evidence on the issue of Hynes’ permission to use the ear at the time of the accident. (St. Andrassy v. Mooney, 262 N. Y. 368 .) Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ.