Bradt v. Lancaster

Mikoll, J. P.

(dissenting). We respectfully dissent.

The finding in favor of defendant based on issues of fact resolved by the jury in her favor should not be disturbed. A verdict should not be set aside unless the jury could not have reached the verdict on any fair interpretation of the evidence (Cohen v Hallmark Cards, 45 NY2d 493, 499; Carpenter v Albee, 192 AD2d 1004).

Defendant testified that immediately prior to the accident she was driving south on State Route 30, in a 55 mile-per-hour zone in heavy rain, at 35 to 45 miles per hour. After braking her car, she slid on the wet roadway into the northbound lane, colliding with the vehicle proceeding north bearing plaintiff Jean V. Bradt, owner of the vehicle, and plaintiff Paula B. Frasier, the driver.

We note that Supreme Court denied plaintiffs’ motion for a directed verdict at the end of trial, finding that a question of fact as to defendant’s negligence existed for resolution by the jury.

The verdict should be reinstated. Plaintiffs failed to prove that defendant’s skid into their lane was attributable to defendant’s negligence. “The test is not whether a jury erred in weighing the evidence, but whether any viable evidence exists to support its verdict” (Durkin v Peluso, 184 AD2d 940, 941). We disagree with the majority’s statement that the only reasonable inference to be drawn from the evidence is that defendant was negligent. Rather, the jury could have rationally concluded that defendant’s speed, which was below the posted speed limit, was not imprudent under the circumstances and *665that her operation of the vehicle under the inclement weather conditions that existed was reasonable.

The verdict is not irrational, and we would reverse Supreme Court’s order and deny plaintiffs’ motion to set aside the verdict.

Carpinello, J., concurs. Ordered that the order is affirmed, with costs.