Opinion
October 24, 1975
Appeal from the Oneida Trial Term.
Present — Marsh, P.J., Mahoney, Goldman, Del Vecchio and Witmer, JJ.
Judgment unanimously affirmed, without costs. Memorandum: The evidence presented questions of fact as to negligence of the defendant and contributory negligence of the plaintiff, which were resolved by the jury. The verdict in favor of defendant "should not be set aside as against the weight of the credible evidence unless the preponderance in favor of the plaintiff was so great that the finding in favor of the defendant could not have been reached upon any fair interpretation of the evidence [cases cited]" (Olsen v Chase Manhattan Bank, 10 A.D.2d 539, 544, affd 9 N.Y.2d 829). Upon this record, the jury, believing defendant's statements that he looked and did not see plaintiff before starting his left turn and that he was traveling five miles an hour, and with proof that the left front portion of defendant's vehicle was off the highway facing in a southerly direction at the time of impact, that the vehicle was pushed 30 feet from the point of the collision into the eastbound lane, facing easterly, and that the vehicles were demolished by the collision, might have concluded that plaintiff approached the accident site at such speed that he could not avoid the impact. A fair interpretation of the evidence permits such a conclusion. Any error in receiving testimony by the witness Shaheen that the symbol entered on the hospital record by someone other than him indicated "alcohol" was harmless, in view of other evidence that plaintiff was heavily intoxicated.