Lenahan v. Goucher

Yesawich Jr., J. (dissenting).

The only proof bearing upon the actual happening of this accident consists of the conflicting versions testified to by the two drivers involved. Assessing the parties’ testimony was the special function of the jury, and its resolution of credibility and disputed fact issues is not to bé facilely dismissed (see, Ellis v Hoelzel, 57 AD2d 968, 969; La Porte v Board of Educ., 57 AD2d 1029). On defendant’s testimony, the jury could have found plaintiff Bernice C. Lenahan to be 35% responsible for the collision because, after starting to pass the parked public works truck, she needlessly came to a sudden stop without warning and in the absence of any oncoming traffic (see, Walczyk v Chresfield, 52 AD2d 601, 602, affd 42 NY2d 934). As plaintiff acknowledged, the westbound cars preceding her halted for the public works vehicle and then proceeded around it “[a]ll in one motion because Lucas Avenue is not conducive to sneaking out and looking. You commit yourself or you don’t go.” Since evidence in plaintiff’s favor is not so great that the jury could not have reached the conclusion it did upon any fair interpretation of the evidence (see, Buscaglia v Olka, 101 AD2d 713, 714), the jury’s verdict should be reinstated.