Hampton v. Kretzer 261 A.D. 1088

Action to recover damages for wrongful death as a consequence of plaintiff’s decedent, while riding on a bicycle, being struck by a truck owned by respondent Kretzer and operated by respondent Montchal. Order setting aside a verdict in favor of the plaintiff and granting a new trial reversed on the law and the facts, with costs, the motion to set aside verdict denied, the verdict for plaintiff reinstated, and judgment directed to be entered thereon, with costs. The record discloses that there were plain questions of fact as to negligence and contributory negligence, the determination of which either for or against the plaintiff should not have been disturbed in the exercise of sound discretion. The trial court here has, in effect, substituted his view of the disputed questions of fact for the determination of the jury. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.