Burke v. Barker

Appellate Division of the Supreme Court of New York

Burke v. Barker

230 A.D. 396, 244 N.Y.S. 829, 1930 N.Y. App. Div. LEXIS 8622

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 10, 1930

StatusPublished

This text of 230 A.D. 396 (Burke v. Barker) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burke v. Barker, 230 A.D. 396, 244 N.Y.S. 829, 1930 N.Y. App. Div. LEXIS 8622 (N.Y. Ct. App. 1930).

Pincite

Opinion

Per Curiam.

In view of the location and surroundings of the gasoline filling station from which the defendant was emerging onto the highway at the time of this accident, and in view of all the facts shown by the evidence relating to the collision, we think that the failure of the trial judge to charge the “ extreme caution ” provision of subdivision 11 of section 81 of the Vehicle and Traffic Law, as it existed at the time of this accident, November 2, 1929, [397]*397as was requested by the appellant, did not constitute reversible error.

The finding of the jury that the accident did not occur solely by reason of defendant’s failure to use such care as is required of him under the circumstances, but was brought about partially, at least, because of plaintiff’s contributory negligence, is amply sustained by the evidence.

On the record before us we think that the jury was justified in finding a verdict for the defendant. The exceptions in the case do not, in our opinion, warrant the reversal of the judgment appealed from.

The judgment and order appealed from should be affirmed, with costs.

All concur, except Sears, P. J., who dissents and votes for reversal on the law on the ground that reversible error occurred in the refusal of the learned trial court to charge the appellant’s request that in emerging from the driveway of the gasoline station the defendant owed a duty of extreme caution. Present — Seaes, P. J., Ceottch, Taylob, Edg comb and Cbosby, JJ.

Judgment and order affirmed, with costs.

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Per Curiam.

In view of the location and surroundings of the gasoline filling station from which the defendant was emerging onto the highway at the time of this accident, and in view of all the facts shown by the evidence relating to the collision, we think that the failure of the trial judge to charge the “ extreme caution ” provision of subdivision 11 of section 81 of the Vehicle and Traffic Law, as it existed at the time of this accident, November 2, 1929, [397]*397as was requested by the appellant, did not constitute reversible error.

The finding of the jury that the accident did not occur solely by reason of defendant’s failure to use such care as is required of him under the circumstances, but was brought about partially, at least, because of plaintiff’s contributory negligence, is amply sustained by the evidence.

On the record before us we think that the jury was justified in finding a verdict for the defendant. The exceptions in the case do not, in our opinion, warrant the reversal of the judgment appealed from.

The judgment and order appealed from should be affirmed, with costs.

All concur, except Sears, P. J., who dissents and votes for reversal on the law on the ground that reversible error occurred in the refusal of the learned trial court to charge the appellant’s request that in emerging from the driveway of the gasoline station the defendant owed a duty of extreme caution. Present — Seaes, P. J., Ceottch, Taylob, Edg comb and Cbosby, JJ.

Judgment and order affirmed, with costs.

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Bluebook (online)

230 A.D. 396, 244 N.Y.S. 829, 1930 N.Y. App. Div. LEXIS 8622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-barker-nyappdiv-1930.