Schumann v. Matturro

In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Westchester County, entered February 20, 1976, which is in favor of defendants and against her, upon a jury verdict. This appeal brings up for review an order of the same court, dated March 15, 1976, which, in effect, denied plaintiff’s motion to set aside the verdict and for the entry of a judgment in her favor, or for a new trial. Judgment and order affirmed, without costs or disbursements. It is undisputed that on the morning of January 23, 1970 a vehicle owned by respondent Dominick Matturro and operated by respondent Mattson Matturro struck plaintiff-appellant. Mattson Matturro and plaintiff both testified at the trial and their testimony was substantially at odds. The jury’s determination that the accident was the result of the negligence of both plaintiff and Mattson Matturro is supported by the evidence. Plaintiff contends that several portions of the charge to the jury, as well as the court’s failure to charge as to several matters, constitute reversible error. Except for one instance, plaintiff made no objection to the charge at the trial. The only contention which merits discussion is the failure of the trial court to marshal the evidence. Where the trial court does not apply the general rules of law to the particular facts of the case, the judgment may be reversed even though no objection was taken to the lack of specificity (Zipay v Benson, 47 AD2d 233). It is always preferable that the trial court marshal the evidence and discuss the relationship between the applicable law and the facts of the case. However, where, as here, the trial is short, the issues are simple and the facts are detailed by the respective counsel in their summations immediately prior to the charge, the judgment will not be reversed unless it is clearly unjust (cf. Combader v Eberhardts’ Bus Serv., 50 AD2d 919; Tenczar v Milligan, 47 AD2d 773, mot for lv to app den 36 NY2d 645). Martuscello, J. P., Latham, Shapiro and O’Connor, JJ., concur.