Burkes v. Lieberman

218 A.D. 600, 218 N.Y.S. 593, 1926 N.Y. App. Div. LEXIS 5985

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 17, 1926
• Status: Published

Opinions

Martin, J.

This is an action to recover for personal injuries alleged to have been suffered by plaintiff as the result of carelessness in the operation of defendant’s automobile. The plaintiff was walking with two other persons along the side of Parkstone road, an unpaved, dirt road, fifteen or sixteen feet wide. While they were proceeding in a southerly direction on the right of the roadway they saw an automobile approaching around a curve about thirty-five feet away. Though then on the right-hand side, as it proceeded around the curve, it swung over toward defendant’s left, toward the side along which the plaintiff was walking. While being so operated, the front left-hand wheel struck a pile of stones, one of which, it is said, was thrown into the air six feet, hitting the plaintiff on the leg and causing the injury for which he recovered this judgment. The pile was made up of eight or nine stones and was about two feet wide and six to ten inches high. A stone produced in court as the one which hit plaintiff was shown to be a foot long and three or four inches thick and to weigh fourteen pounds.

There is testimony that the car was going “ fast; ” and the witness Schwartz, describing the accident, said: “We were walking along and as we got to this road, about fifteen feet, we saw a machine come around this curve. It was coming around rather fast. It came around on the right and made a short turn cutting over toward the left. It came down; in front of us there was a pile of rocks. It hit the rocks, one of the stones flying off and hitting Mr. Burkes in his leg.” He also said he saw the stone “ fly up ” and hit the plaintiff. The defendant rested on the plaintiff’^ case.

Before the plaintiff is entitled to recover he must prove that the accident was the result of the negligence of the defendant. The testimony does not show that the driver was negligent. As the car was going around a sharp curve, it is not likely that its rate of speed was very high. To say that the car was going rather fast does not mean anything, especially as defendant was traveling round a sharp curve on a very narrow road. Nor is there any evidence that the driver of the car could see the stones or had reason to know that a small pile of stones would be in the roadway, or that he was negligent in not observing the same. He could not reasonably anticipate that such a phenomenon would happen as that described in the evidence for plaintiff. There is no proof in this case that the defendant did anything negligently or omitted to do any act that he should have done; and no violation of law of any kind in the operation of the machine is shown.

Considering the unusual manner in which the accident is asserted to have happened, as well as the very indefinite testimony as to speed, and the absence of any testimony upon which to base a finding of negligence, we believe this record to be insufficient to support the verdict and that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Clarke, P. J., and Finch, J., concur; Merrell and Burr, JJ., dissent.