John D. Fairley, as Administrator of the Estate of Dewey Fairley, Deceased, et al., Appellants, v. George Stubender et al., Respondents

John D. Fairley, as Administrator of the Estate of Dewey Fairley, Deceased, et al., Appellants, v. George Stubender et al., Respondents. [MAJORITY] Judgment entered April 7, 1965, unanimously modified, on the law and the facts, to the extent of granting a new trial, and as so modified the judgment is affirmed, with $50 costs and disbursements to abide the event. The trial court was correct in setting aside the verdict of the jury in favor of the plaintiffs. However, the complaint should not have been dismissed. Upon the plaintiffs’ version, of the facts it cannot be said as a matter of law that' the defendants were not negligent, or that the defendants had the right of way into the intersection. That would depend on what version of the facts is accepted. However, implicit in the trial court’s decision was a finding that the verdict of the jury was against the weight of the evidence. In the circumstances of this case, considering the testimony of plaintiffs’ witnesses as to the manner in which the accident occurred, the trial court’s conclusion that the verdict was against the weight of the evidence should not be disturbed. Concur— Botein, P. J., Breitel, Rabin, Stevens and Steuer, JJ.